holding that post-judgment monitoring of the consent decree was a necessary aspect of plaintiffs' prevailing in the case, thus plaintiffs satisfied the Sec. 1988 prevailing party requirement
How later courts described this case
- holding that post-judgment monitoring of the consent decree was a necessary aspect of plaintiffs' prevailing in the case, thus plaintiffs satisfied the Sec. 1988 prevailing party requirement
- holding that "a finding of contempt or obstruction of implementation is not a prerequisite to an award of attorney fees for reasonable post-judgment monitoring of a consent decree"
- describing the district court's inability "to [otherwise] control, on a current basis, the amount of fees being incurred by one party at the expense of another," which may quickly lead to overbilling
- “Are Contempt Findings a Prerequisite to Section 1988 Awards for Monitoring?”
Written by the judges who cited it.
The opinion
SNEED, Circuit Judge
(concurring in part and concurring in the judgment).
I concur in all portions of Judge Thompson’s opinion except with respect to I.C. as to which I concur only in the result.
I agree that the mere existence of a separate monitoring entity does not automatically bar any fee award to the Center for monitoring activities. I also agree that the finding by the district court that the work of the Center was neither a duplication nor usurpation of the work of CFAAC and the Advocate did not constitute an abuse of discretion.
My concern with part I.C. of the opinion is that it can be construed to approve routine monitoring by the Center of the day-today activities of CFAAC and the Advocate. In one sense the monitoring of Z by Y and of Y by X is not duplicative. Both X and Y have different objects of scrutiny. In another sense, however, it does duplicate effort. The ultimate object is to see that Z performs the assigned duty. My fear is that Judge Thompson’s opinion will be understood as recognizing no duplication in the X Y Z situation even when both X and Y monitor on a routine day by day, hour by hour, basis.
Certainly Brewster v. Dukakis, 786 F.2d 16 (1st Cir.1986) does not require such a conclusion. The Brewster court quite correctly rejected the proposition that plaintiff’s attorneys should be compensated when the decree created a monitoring entity only “where a substantial issue arises as to the defendant’s 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.” Id. at 18 . The First Circuit was, as it put it, “traumatized” by the prospect of applying such a standard. I share that view. However, Brewster did find that the work of plaintiff’s counsel did not duplicate that of the court appointed monitor, id. at 19 n. 8, and recognized the danger of a decree “institutionalizing” the plaintiff’s attorney as well as the monitor. Id. at 18 .
I doubt not that the First Circuit would recognize that to pay X to monitor Y who monitors Z would “institutionalize” X when both X and Y were checking up on a daily, hour by hour, basis. Such “institutionalization” recedes as X’s work becomes less constant and more particularized. The point at which it escapes the brand of duplication must be left to the judgment of the district court.
Brewster is quite consistent with this conclusion. I write, to repeat, only because I am not sure that part I.C. of Judge *861 Thompson’s opinion is equally consistent. It too much blesses the exercise by the trial court of its discretion without indicating by what standard such exercise should be guided.