551 F. Supp. 185 (1982) | Cited 0 times | D. Maine | August 6, 1982



Neville Woodruff, Esq., Helen M. Bailey, Esq., and the Mental Health Law Project (MHLP) through its staff attorney, Jane Bloom Yohalem, Esq., counsel for plaintiffs, each seek an award of attorney's fees and costs pursuant to the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, for their services in implementing a July 1978 consent decree entered in the above-entitled action. Four motions are before the Court, supported by affidavits and detailed timesheets. Defendants oppose all motions. A hearing has been held and counsel have submitted written and oral arguments. To the extent hereinafter set forth, counsel's requests for attorney's fees and costs are granted.


Background of the Case

This action was brought in July 1975 on behalf of plaintiffs, a class of mentally retarded Maine citizens, under 42 U.S.C. § 1983 against the Maine Commissioner of Mental Health and Corrections, the Supervisor of Pineland Center (the state institution for the mentally retarded), and other state officials, for alleged violations of constitutional and statutory rights to be free from harm and to receive certain habilitative services. On July 14, 1978 the parties entered into a consent decree which set forth a comprehensive plan for upgrading Pineland Center and developing a network of community facilities and programs to serve the mentally retarded. The consent decree called for the Court to retain jurisdiction over the matter for a two-year period and for the appointment of a Special Master for a two-year term to oversee implementation of the decree. On July 21, 1978, the Court appointed David Gregory as the Special Master for a two-year term.

On June 2, 1980 plaintiffs moved for reappointment of the Special Master for another two-year term. Plaintiffs contended the office of Special Master was essential to the effective implementation of the decree. Defendants opposed the reappointment on the ground that they had achieved "substantial compliance" with the decree objectives and therefore the continued supervision of a master was unnecessary. After hearing on July 1, 1980, the Court extended for an additional two years its jurisdiction over the case, and temporarily reappointed Special Master Gregory. The Court also scheduled an evidentiary hearing in November 1980 on the issue of whether continuation of the Special Master's office for an additional two-year term was required.

In the fall of 1980 counsel advised that the scheduled evidentiary hearing might be continued because it appeared they could agree on a stipulated resolution of the dispute. Several months of negotiations ensued, and ultimately, on January 14, 1981, counsel executed a Stipulation Agreement, which recognized the substantial progress made by defendants in meeting the requirements of the decree, identified areas in which defendants were not in compliance, and set forth specific plans to remedy those deficiencies. Pursuant to the Stipulation Agreement, on January 14, 1981, the Court ordered continuation of the office of Special Master until July 1, 1982 and appointed Lincoln Clark to the office.

On September 18, 1981, after notice and hearing, the Court discharged Pineland Center from its jurisdiction pursuant to the recommendation of the Special Master, joined in by all parties and counsel. The Court's jurisdiction over the implementation of the decree as it pertained to the development of community facilities was unaffected by the discharge of Pineland Center.

Attorney's fees have been awarded in this case for work done by plaintiffs' counsel in several prior periods. On April 9, 1979 the Court approved a stipulation of the parties, by which defendants agreed to pay plaintiffs $90,000 in full settlement of all claims for attorney's fees and costs for the period March 1, 1975 to January 2, 1979. On December 15, 1980, the Court approved a second stipulation, under which defendants agreed to pay attorney Woodruff $13,680.00 and attorney Bailey $2,320.00 in attorney's fees for the period January 2, 1979 through June 30, 1980.

Presently before the Court are four motions for attorney's fees and costs for legal services performed in subsequent periods:

(1) The first motion seeks $38,076.25 to compensate attorney Woodruff for approximately 550 hours of legal work and $13,380.00 to pay attorney Bailey for 274.25 hours of representation during the period July 1, 1980 to January 14, 1981. In addition, costs in the amount of $4,230.05 are sought for this period, bringing the total amount requested to $55,686.30.

(2) The second motion requests fees and costs in the total amount of $10,221.39 for the period January 14, 1981 through September 18, 1981. Of that total, $4,655.00 is sought to compensate attorney Woodruff for approximately 82 hours of legal work; $5,060.00 for attorney Bailey's 127.5 hours of legal work; and $506.39 for costs.

(3) The third motion prays for an award of $14,775.00 in fees to the MHLP for 197 hours of legal work provided by attorney Yohalem between January 2, 1979 and July 1, 1980. In addition, it seeks to recover $1,969.73 in expenses.

(4) The fourth motion seeks an award of $13,200 to the MHLP for 176 hours of legal work provided by attorney Yohalem between July 14, 1980 and October 20, 1980, when attorney Yohalem and the MHLP withdrew from the case. The motion also requests $2,594.24 in expenses.

Defendants object both to the propriety of any awards and to the amounts requested. Defendants also object to any award of costs or expenses.


Entitlement to Attorney's Fees

Under 42 U.S.C. § 1988, the Court has discretion to award a "reasonable attorney's fee" to the "prevailing party" in an action such as this one brought to vindicate civil rights under 42 U.S.C. § 1983. White v. New Hampshire Department of Employment Security, 679 F.2d 283, slip op. at 3-4 (1st Cir. 1982); Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978). "A plaintiff who succeeds on 'any significant issue in litigation which achieves some of the benefits [he] sought in bringing suit' may be considered a prevailing party for these purposes, even if vindication of his rights is achieved through a consent decree or without formal relief." Id. There is no question that plaintiffs were "prevailing parties" in the underlying action, which resulted in the 1978 consent decree. Plaintiffs' counsel have been awarded attorney's fees for that achievement. Defendants have also voluntarily paid plaintiffs' counsel attorney's fees for some post-judgment work: the MHLP through January 1, 1979, and Woodruff and Bailey through June 30, 1980. Defendants now, however, strenuously contest counsel's entitlement to any additional fees for their subsequent efforts in assuring compliance with the consent decree.

Neither Section 1988 nor its legislative history expressly authorizes an award of attorney's fees for post-judgment services rendered to implement a judgment. A principal purpose of the Attorney's Fees Award Act, however, was to ensure protection of rights despite inability to afford legal representation; "citizens must have the opportunity to recover what it costs them to vindicate those rights in court." S. Rep. No. 94-1011, 94th Cong., 2d Sess. 2-3, reprinted in 1976 U.S. Code Cong. & Adm. News, 5908, 5909-10.

Although the First Circuit has not considered whether and to what extent an award of attorney's fees may be made for post-judgment legal services, other courts have consistently concluded that services necessary for reasonable monitoring of a consent decree are compensable under Section 1988. Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624, 637 (6th Cir. 1979), cert. denied, 447 U.S. 911, 100 S. Ct. 2999, 64 L. Ed. 2d 862 (1980). See, e.g., Miller v. Carson, 628 F.2d 346, 348 (5th Cir. 1980); Stenson v. Blum, 512 F. Supp. 680, 684 (S.D.N.Y. 1981); Peacock v. Drew Municipal Separate School District, 433 F. Supp. 1072, 1076-77 (N.D. Miss. 1977), aff'd, 611 F.2d 1160 (5th Cir. 1980); McPherson v. School District #186, 465 F. Supp. 749, 752-54 (S.D. Ill. 1978); Dowell v. Board of Education, 71 F.R.D. 49 (W.D. Okla. 1976). This Court concurs with the rule adopted by these cases that where a plaintiff is a "prevailing party" in a Section 1983 action, and obtains a decree, whether after trial or by consent, and where the plaintiff's attorney's subsequent services devoted to reasonable monitoring of the decree are necessary to enforce the decree and to ensure full implementation of plaintiff's rights, those subsequent services are compensable under Section 1988. Northcross v. Board of Education of Memphis City Schools, supra, 611 F.2d at 637. Such an approach is consistent with the purpose of the Fees Award Act, and is necessary to ensure effective vindication of a plaintiff's rights.

With limited exceptions, the services performed by plaintiffs' attorneys during the periods covered by the present motions clearly fall within the rule of the above cases:

A. Attorneys Woodruff and Bailey

In their two motions, attorneys Woodruff and Bailey seek compensation for their services in implementing the consent decree from July 1, 1980 through September 18, 1981. The supporting affidavits and timesheets show that during the period covered by their first motion, July 1, 1980 to January 14, 1981, Woodruff and Bailey devoted nearly all of the time for which they now seek compensation to obtaining reappointment of the Special Master for an additional two-year term. The issue was raised by plaintiffs' motion for the Special Master's reappointment filed in June 1980. In opposing the motion, defendants asserted they were in substantial compliance with the 1978 consent decree and argued that, therefore, a court-appointed monitor was unnecessary. To meet defendants' arguments, plaintiffs' counsel had to investigate the status of defendants' compliance efforts to date. Such a task inevitably required extensive fact-gathering, discovery, and research in preparation for the scheduled November 1980 evidentiary hearing, and, later, negotiations and drafting. The January 14, 1981 Stipulation Agreement, which resolved this controversy, specifically called for the continuation of the Special Master's office. The Stipulation Agreement also specifically identified the areas in which defendants were not in compliance with the decree, and set forth a detailed timetable and plans for correction. The record establishes beyond contravention that the efforts of plaintiffs' counsel were a "necessary and important factor," Nadeau v. Helgemoe, supra, 581 F.2d at 281, in continuing the Special Master's office and in assuring defendants' commitment to comply with their legal obligations under the decree. Counsel are entitled to be paid therefor.

The supporting affidavits and timesheets show that during the period covered by their second motion, January 14, 1981 through September 18, 1981, virtually all work billed by Woodruff and Bailey was done pursuant to their duties under the January 1981 Stipulation Agreement. As defendants concede, the Stipulation Agreement itself contemplated the participation of plaintiffs' attorneys in implementing the plans of correction outlined therein. From its examination of the record, the Court is satisfied that counsel's efforts were reasonably necessary to secure compliance, were not frivolous or superfluous, and did make a substantial and important contribution to the achievement of benefits sought under the 1978 consent decree. See Nadeau v. Helgemoe, supra, 581 F.2d at 281. The services thus rendered are compensable.

B. The MHLP (Attorney Yohalem)

The two motions filed by attorney Yohalem on behalf of the MHLP seek compensation for services in implementing the consent decree from January 2, 1979 through October 20, 1980, when Yohalem and the MHLP withdrew from the case. Counsel's affidavits and timesheets show that during the period covered by the first motion, January 2, 1979 to July 1, 1980, the MHLP through Yohalem contributed its nationally recognized expertise in litigation to secure the rights of the mentally retarded toward the successful resolution of a number of significant issues concerning implementation of the consent decree. For example, a formal request for findings and recommendations which plaintiffs' counsel submitted to the Special Master on February 26, 1979, led to a commitment by defendants to increase staffing at Pineland Center to ensure the health and safety of the residents. Action by plaintiffs' counsel in pursuing reported noncompliance with decree requirements at Pineland Center instigated negotiations between the parties which resulted in defendants' commitment to reorganize staffing, hire new professional staff, remedy fire hazards, improve resident transportation to the clinic, and adopt safety measures for residents. The efforts of plaintiffs' counsel in advocating a method of funding resulted in a negotiated agreement which materially enhanced defendants' financial ability to implement the consent decree in an effective manner. The record establishes that the MHLP's work on these questions contributed substantially to defining problems, creating solutions to those problems, and effectuating the solutions. These services were a necessary and important factor in achieving benefits mandated by the decree. The MHLP is entitled to be compensated therefor.

The supporting affidavits and timesheets show that during the period covered by the MHLP's second motion, July 14, 1980 through October 20, 1980, Yohalem actively participated in preparing the evidence to be presented at the scheduled November 1980 hearing on plaintiffs' motion for reappointment of the Special Master. There can be no question that the expertise of Yohalem and the MHLP significantly assisted plaintiffs' local counsel. The work done by Yohalem during this period included planning and executing extensive discovery; acquiring and interviewing experts to assess Pineland Center and community programs; touring Pineland Center and community facilities and interviewing staff in preparation for the hearing; and simultaneously pursuing a negotiated settlement with defendants. Although Yohalem and the MHLP withdrew as counsel one month before the scheduled hearing and did not participate in the final negotiations that culminated in the January 14, 1981 Stipulation Agreement, the record is persuasive that the work done by Yohalem in preparation for the anticipated hearing and her participation in the preliminary negotiations laid the groundwork for the Stipulation Agreement and materially contributed to the ultimate settlement. MHLP's unexplained withdrawal from the case may require some reduction in the amount of the requested compensation. But the Court is satisfied that the services rendered by Yohalem and the MHLP during the period covered by the second motion were necessary and important to the achievement of benefits under the decree, and are compensable.


Amount of Attorney's Fees

In computing the appropriate fee to be awarded under Section 1988, the First Circuit has prescribed the following procedure.

First, a "lodestar" fee is determined by multiplying a reasonable hourly rate by the number of hours reasonably expended on the lawsuit. Second, the "lodestar" is adjusted up or down to reflect factors, such as the contingent nature of success in the lawsuit or the quality of legal representation, which have not already been taken into account in computing the "lodestar" and which are shown to warrant the adjustment by the party proposing it.

Miles v. Sampson, 675 F.2d 5, 8 (1st Cir. 1982) (original emphasis); Furtado v. Bishop, 635 F.2d 915, 920 (1st Cir. 1980). See also Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880, 890-92 (D.C. Cir. 1980) (en banc). The amount of the counsel's fee award "should be based on the work performed on the issues in which they were successful." Miles v. Sampson, supra, 675 F.2d at 8, quoting Nadeau v. Helgemoe, supra, 581 F.2d at 279.

The starting point of this calculation, the so-called "lodestar" figure, requires the court to separate work done according to the levels of expertise of the attorneys involved; eliminate time "beyond that consistent with a standard of reasonable efficiency and productivity"; and assign hourly rates "for the kinds of work done by those at different levels of expertise." Furtado v. Bishop, supra, 635 F.2d at 920. The court may reduce or exclude time which is not specifically documented; is duplicative of other services; or proves inconsistent with other billings. Id. at 922; Souza v. Southworth, 564 F.2d 609, 612 (1st Cir. 1977). Furthermore, in setting a reasonable hourly rate the court must consider the relative degree of experience and expertise of counsel as well as the particular kind of work performed. Miles v. Sampson, supra, 675 F.2d at 8; Furtado v. Bishop, supra, 635 F.2d at 920, 922; Copeland v. Marshall, supra, 641 F.2d at 892.

The First Circuit also has adopted a list of twelve factors to be considered by the district courts in arriving at a reasonable fee award:

1) the time and labor required; 2) the novelty and difficulty of the question presented; 3) the skill required to perform the legal services; 4) the preclusion of other employment by the attorney due to acceptance of the case; 5) the customary fee in the community; 6) whether the fee is fixed or contingent; 7) time limitations imposed by client or circumstances; 8) the amount involved and the results obtained; 9) the experience, reputation and ability of the attorney; 10) the undesirability of the case; 11) the nature and length of the professional relationship with the client; 12) awards in similar cases.

King v. Greenblatt, 560 F.2d 1024, 1026-27 (1st Cir. 1977), cert. denied, 438 U.S. 916, 57 L. Ed. 2d 1161, 98 S. Ct. 3146 (1978).

Once a lodestar figure is determined, the Court must consider whether any adjustment is necessary. The First Circuit has made clear that this step is a "residual category that is relevant only when the parties point out factors that do not easily fit into the initial calculation of the lodestar." Furtado v. Bishop, supra, 635 F.2d at 924. The burden of justifying departure from the lodestar norm is upon the party proposing the adjustment. Id.; Copeland v. Marshall, supra, 641 F.2d at 892.

With these general principles in mind, the Court now turns to the individual requests.

A. Attorney Woodruff

The fees sought by attorney Woodruff in his two motions break down as follows:

First motion (July 1, 1980 to January 14, 1981):

339 hours "trial preparation services," $75/hour $25,425211 hours "other legal services," $60/hour 12,660 550 hours -- $38,085

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