Petition — Baird v. Bellotti

83 - 1664 Office - Supreme Court, U.S.

FILED

il

No. 83- APR 1984

EE

CLERK

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1983

WILLIAM BAIRD, et al.,

Petitioners,

Vv.

FRANCIS X. BELLOTTI, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

JOSEPH J. BALLIRO Roy Lucas, Counsel of Record

20 Beacon Street 10400 Whitehead Street

Boston, MA 02108 Fairfax, VA 22030

Joan C. SCHMIDT (703) 352-0234

Law Offices of

F. LEE BAILEY

109 State Street

Boston, MA 02109

IS

PRZSS OF BYF.ON 8. ADAMS, WASHINGTON, D.C. (202) 347-8203

i

QUESTIONS PRESENTED

I. Whether the Court of Appeals disregarded the twelve

factors from Hensley v. Eckerhart (U.S. 1983), and the strong

purposes of the Civil Rights Attorney’s Fees Awards Act, in

totaliy denying fees to prevailing counsel in Bellotti v. Baird (I

& II), who had delayed applying for fees until shortly after

White v. New Hampshire Dep’t of Employment Security (U.S.

1982)?

II. Whether the Court of Appeals was arbitrary in denying

fees to Baird counsel in Bellotti I] while awarding fees to

Planned Parenthood counsel for the same services?

III. Whether the Court of Appeals should have applied an

existing three year state statute of limitations on claims

against the Commonwealth where there was no other statute, .

local rule, order, or practice requiring an earlier filing?

IV. Whether the Court of Appeals erred as a matter of law

in upholding a motion to dismiss the fee petition, without a

hearing, where no state claim of surprise was made, and the

prejudice assertions rested on identical affidavits from state

assistants who still resided in the area, but claimed loss of

memory on facts as to which they would not be called as-

witnesses?

LIST OF PARTIES

William Baird, Mary Moe, Gerald Zupnick, M.D., Francis

X. Bellotti.

ii

TABLE OF CONTENTS

Page

ines kaa ehsnbendievececdcecces 1

ee Mss ectbccecesescceees 1

ee de Ss sock becdectoceeec’ 2

ES EE ee 2

REASONS FOR GRANTING THE WRIT ...............+.-- 11

I. The Court Of Ap Disregarded The Twelve Fac-

_ From Hensley v. roa wh Ce. 1983), _

T Denying Civil Rights Attorney’s Fees To

Prevaili Counsel In Bellotti v. Baird (I & II) Who

| ——— ree pe OF Broley — | mee i

ew Hampshire mployment Securi

oa... <i ONRS “

II. The Court Of Appeals Arbitrarily Denied Fees To

Baird Counsel In Bellotti I] While Awarding Fees

To Planned Parenthood Counsel For The Same Serv-

III. The Court Of Appeais Decision Is Inconsistent In

Principle With Decisions By The Sixth And Seventh

IV. nny leg my Seay “me Have Applied An Ana-

Three Year State Statute Of itations On

i inst The Commonwealth, Because There

Was No Statute, Local Rule, Order, Or Prac-

tice Requiring An Earlier Filing. ............... 18

ee hed ewcccece 20

APPENDIX:

+ oo of the U.S. Court of Appeals, Jan 13,

_ 1984, denying all fees. ap a

B. Opinion of the U.S. District Court, December 13,

1 SETI, obec cnddddvcsccceccocesoes lla

iii

TABLE OF AUTHORITIES

CASES: Page

Baird v. Attorney General, 371 Mass. 741, 360 N.E.2d

ET NEE. Coletccchacdt ex weuke sess cackebetane

Baird v. Bellotti, 555 F. Supp. 579 (D. Mass. 1982) passim

Bellotti v. Baird, 128 U.S. 132 (1976), vacating 383 F.

Supp. 847 (D. Mass. 1975) ............eeeeee. passim

Bellotti v. Baird, 443 U.S. 662 (1979), affg 450 F. Supp.

SOS Ce ES SOE as ec ckc es ccceshecdvenars passim

Board of Regents v. Tomanio, 446 U.S. 478 (1980) .. 18, 19

Brewster v. Dukakis, 554 F. Supp. 1069 (D. Mass.

DO sa dhcscsntecascubetoispevakenencene 14, 18, 19

Brinkman v. Gilligan, 697 F.2d 163 (6th Cir. 1983) (per

curiam), affg 557 F. Supp. 610 (S.D. Ohio

BN pose egnésc Sh ccvachdsdeeceearsescheseens 16, 17

Cities Service Oil Co. v. Puerto Rico Lighterage Co., 305

F.2d 170 (1st Cir. 1962) ........ Ms pia are ie Rane G

David v. Travisone, 621 F.2d 464 (1st Cir. 1980) (per

SESE: sv chbcwnnd cedexesys ES 5) er

aan Nat'l Bank, 574 F.2d 1173 (4th Cir.

Gautreaux v. Chicago Housing Authority, 690 F.2d 601

ot AR ae ce 8, 16, 17, 18

Gutierrez v. Waterman S.S. Corp., 373 U.S. 206 (1963) 6, 8

Hensley v. Eckerhart, ____ U.S. —-- (May 16,

DEE webu dovsydobes 6600s bpesed crcaseve aed passin’

Maine v. Thiboutot, 448 U.S. 1 (1980) ............04. 6

Maher v. Gagne, 448 U.S. 122 (1980) ................ 6

Mahoning Women’s Center v. Hunter, 610 F.2d 456 (6th

Cir. 1979), vacated, 447 U.S. 918 (1980) (per curiam) 6

Mills v. Eltra Corp., 663 F.2d 760 (7th Cir. 1981) .. 16, 18

N.Y. Gaslight Club v. Carey, 447 U.S. 54 (1980) ..... 6

Northcross v. Board of Education, 611 F.2d 624 (6th Cir.

1979), cert. denied, 447 U.S. 911 (1980) ........ 12, 17

Scheuer v. Rhodes, 416 U.S. 232 (1974) ............. 9

divcoosceFencoeees ence sseecbwesies ecneee 5, 16

iv

Table of Authorities Continued

ong

White v. New Hampshire Dep't 0 ge aire

629 F.2d 697 (1st Cir. 1 ), rev'd, 455 U.S.

(1982), on remand, 679 F.2d 283 (1st Gr. 1983) passim

STATUTES:

ee: Ga. La A, Ge oc nc wcecaccvicovscses 2, 19

Mass. Gen. Laws Ann. Ch. 260, §3A ............... 2, 19

Shae Gn Gite Se SOs ME nae o'n coset ccuabbhévesece 2

Sicees Gas Gs I, I Sco i'c c cn nnadscadecuut passim

Sic SOU Ws ly OS Ie kvccocciucaccaleaeds passim

OTHER AUTHORITIES:

Bellotti & Schultz, Federalism—The Massachusetts Ex-

perience, 12 Suffolk U.L.Rev. 1225 (1978) ....... 5

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1983

No. 83-

WILLIAM BalIrD, et al.,

Petitioners,

Vv.

FRANCIS X. BELLOTTI, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

OPINIONS BELOW

The January 13, 1984, opinion of the Court of Appeals is

reported. 724 F.2d 1032. It appears as Appendix A, infra.

The December 13, 1982, opinion of the district court is re-

ported. 555 F.Supp. 579 (D. Mass. 1982). It appears as Appen-

dix B, in ra. Earlier procedural orders of the district court are

-in Appendix ©.

The prior opinions of this Court in the same controversy are

Bellotti v. Baird, 443 U.S. 662 (1979) (Bellotti II), and Bellotti

v. Baird, 428 U.S. 132 (1976) (Bellotti 1).

JURISDICTION

(i) The U.S. Court of Appeals issued the judgment to be

reviewed on January 13, 1984.

(ii) There was no petition for rehearing.

2

(iii) Section 1254(1), Title 28, U.S. Code is the basis for

certiorari jurisdiction in this Court.

STATUTES INVOLVED

The Civil Rights Attorney’s Fee Awards Act of 1976, 42

U.S.C. § 1988, provides:

In any action or proceeding to enforce a provision of Sec-

tion 1981, 1982, 1983, 1985. . . the court, in its discretion,

may allow the prevailing party . . . a reasonable attor-

ney’s fee as part of the costs. (Emphasis added).

43 Mass. Gen. Laws Ch. 260, § 3A, at 139 (1959), provides:

Petitions founded upon claims against the Commonwealth

prosecuted under chapter two hundred and fifty-eight

shall be brought only within three years next after the

cause of action accrues. Added St. 1948, c. 566, § 1.

STATEMENT OF THE CASE

This is an appeal from the total denial of any civil rights

attorney’s fees to prevailing Baird counsel in the litigation

from 1974-1979 culminating in Bellotti (II) v. Baird, 443 U.S.

622 (1979). Counsel submitted a detailed fee petition itemizing

all time. The district court, without hearing any evidence from

the State or Baird, granted a motion to dismiss all claims for

fees and litigation expenses as untimely under 42 U.S.C.

§ 1988. Baird v. Bellotti, 555 F.Supp. 579 (D. Mass. 1982). The

First Circuit affirmed as to Baird counsel, but awarded fees to

Planned Parenthood (intervenor) counsel for similar services

before this Court in Bello/ti (11).

This lengthy litigation has resulted in eight reported opin-

ions. These include the opinion below, four opinions from the

district court, one from the Supreme Judicial Court of Massa-

chusetts, and two from this Court. The litigation is summa-

rized below.

1. District Court: October 30, 1974 To May 20, 1975

On October 30, 1974, plaintiffs William Baird, Gerald Zup-

nick, M.D., and Mary Moe filed a class action complaint. The

3

district court held a four day hearing. The hearing was trans-

cribed. Written briefs and exhibits were filed.

The district court issued its initial opinion on April 28, 1975.

Baird v. Bellotti, 393 F.Supp. 847 (D. Mass. 1975). A majority

held the statute unconstitutional.

2. First Appeal To Supreme Court

The Commonwealth appealed. This Court noted probable

jurisdiction. Baird counsel filed a printed brief of fifty-seven

pages, in response to lengthy comprehensive briefs from the

Attorney General.

On July 1, 1976, this Court decided Bellotti v. Baird, 428

U.S. 132 (1976) (Bellotti 1). The Court vacated the lower court

judgment and remanded for certification of appropriate state

law questions to the Supreme Judicial Court of Massachusetts.

3. Remand To The District Court

Pending certification, Baird counsel applied to the district

court on July 6, 1976 for a temporary injunction. The three-

judge panel denied the injunction.

Baird counsel next applied here for a stay. Justice Brennan

granted the stay on July 30, 1976. The full Court denied a

motion to vacate that stay on October 18, 1976. 429 U.S. 892

(1976) (per curiam).

Upon the district court’s request, plaintiffs proposed writ-

ten questions fosr certification. The district court certified

several questions on October 31, 1976. Baird counsel then

prepared and filed a fifty-four page brief, and thereafter pre-

sented argument.

The Supreme Judicial Court of Massachusetts answered the

certified questions in an opinion issued January 25, 1977. Baird

v. Attorney General, 371 Mass. 741, 360 N.E.2d 228 (1977).

d

4. District Court Resumption Of Proceedings

On February 10, 1977, the district court granted a further

stay, and enjoined the statute, as construed, in its entirety. 428

F.Supp. 854 (D. Mass. 1977).

The district court held a non-jury trial on October 17-18,

1977. On May 2, 1978, the court again held the abortion statute

unconstitutional. Baird v. Bellotti, 450 F.Supp. 977 (D. Mass.

1978).

5. Second Appeal To Supreme Court (Bellotti II)

A direct appeal by defendants followed. This Court on July

2, 1979, affirmed the judgment of the district court. Bellotti v.

Baird, 433 U.S. 662 (1979) (Bellotti I). Baird counsel had filed

a brief of forty-seven printed pages. Eight members of this

Court held that the Massachusetts statute violated the Con-

stitution. The Court denied defendants’ motion for rehearing,

on Octoher 1, 1979, and plaintiffs became “prevailing parties”

on October 25th, when the mandate was received below.

The foregoing proceedings are all well documented by briefs

and transcripts.

6. The Fee Application

Baird counsel deferred their application for attorney’s fees

for several reasons. Inquiries to the clerk revealed no time

limit or procedure. There was no applicable local rule. The

district court had not set a time for filing. There was an analo-

gous three year statute of limitations. Defendants were on

notice, could not, and did not claira surprise. Moreover, the

prior work was all on the record and could be evaluated as well

in 1982 as in 1979.

The likelihood of prejudice to the Commonwealth also

appeared minimal. They were being spared further work for a

time and allowed to keep their money.

Respondent Bellotti was certainly aware of liability in this

case. He co-authored an article in late 1978 criticizing Bellot? ' /

5 ~

and complaining about the “disturbing implications” of the

Fees Act. Bellotti & Schultz, Federalism—The Massachusetts

Experience, 12 Suffolk U.L. Rev. 1225, 1233-37 (1978). Bellotti

referred in the article to “at least twenty significant civil rights

cases in which the commonwealth might be held liable for

fees.” Jd. at 1236. Liability had been estimated through “an

informal survey of cases in the Department . . .” Jd. Respon-

dent Bellotti referred to the same information in the Petition

For Writ Of Certiorari, Greenblatt v. King, No. 77-684, at 9 &

n.3. The survey did nut emerge in discovery and was unknown

until seen in the library of this Court.

Although Baird counsel had not been paid, they were not

anxious to start up more niajor litigation without compensation

for another several years.

In 1979 the Civil Rights Attorney’s Fees Awards Act ot

1976, 42 U.S.C. § 1988, had not been litigated extensively.

Baird counsel had concern that some means would be found in

this highly unpopular, controversial case to circumvent the

Fees Act and deny all or most of the fee request. The possibili-

ties were several: a 10 day rule, a “good faith” defense, a partial

success argument, a reduction of rates, a denial of fees

altogether to out-of-state counsel, a denial of fees because the

case involved nonmonetary issues, or a denial of all fees during

1974-1977 when abstention was a major issue. The prospect of

researching, briefing, and arguing each such issue without any

compensation for another five years was discouraging.

Although the Fees Act was proposed “to ensure ‘effective

access lo the judicial process’ for persons with civil rights

grievances,” Hensley v. Eckerhart, supra, it was not working

well until after the 1980 series of decisions by this Court. As to

time for filing, the Act had no provision. The principal guide

from this Court in 1979 was Sprague v. Ticonic National

Bank, 307 U.S. 161 (1939), a unanimous reversal of the First

Circuit written by Justice Frankfurter.

Sprague was described in White, 455 U.S. 445, 451 n.13

(1982), also unanimous, as follows:

6

In Sprague this Court considered the power of a federal

court to award counsel fees pursuant to an application filed

several years after the entry of a judgment on the merits

. . . (The Court held that the petition. . . represented ‘an

independent P ing ... The passage of time thus

presented no bar to an award of fees. (Emphasis added).

In light of Sprague, in the absence of a local rule, and with

the three year state statute of limitations in mind, Baird coun-

sel in 1979 and 1980 could reasonably conclude that an immedi-

ate fee petition was unnecessary.

Decisions more specifically on laches also supported this

conclusion of Baird counsel.

Guitierrez v. Waterman S.S. Corp., 373 U.S. 206, 215-216

(1963), for example, rejected a laches defense. The moving

party had not interviewed the witnesses who were available

and had undertaken no discovery. Nor had the Commonwealth

here. Relevant records were also available, as here. The plain-

tiff delayed from October 21, 1956, until January 9, 1959,

before filing suit. This was outside the analogous statute of

limitations. Baird counsel, however, are within the statute.

The present case is similar to Guitierrez in timing and the

weakness of the laches claim of prejudice. See also Cities

Service Oil Co. v. Puerto Rico Lighterage Co., 305 F.2d 170,

171 (1st Cir. 1962) (delay not excusable but prejudice not

shown); EEOC v. Westinghouse Elec. Corp., 592 F.2d 484, 486

(8th Cir. 1979) (insufficient showing of prejudice); EEOC v.

American Nat'l Bank, 574 F.2d 1178, 1175 (4th Cir. 1978)

(insufficient showing of prejudice).

Counsel ultimately chose to await the outcome of N.Y. Gas-

light Club v. Carey, 447 U.S. 54 (1980); Maher v. Gagne, 448

U.S. 122 (1980); Maine v. Thiboutot, 448 U.S. 1 (1980); and

Mahoning Women’s Center v. Hunter, 447 U.S. 918 (1980) (per

curiam).

Counsel further awaited the disposition of White v. New

Hampshire Dep't of Employment Security, 455 U.S. 445

(1982), rev'g 629 F.2d 697 (1st Cir. 1980) (hereafter cited as

“White”).

7

The 10 day rule of White would have barred any fee applica-

tion filed from November 5, 1979, through the March 2, 1982,

reversal of White. Although the First Circuit decided White on

August 12, 1980, the case was briefed and argued much earlier.

The panel included the judge who would sit in the district court

on the Baird fee application. That judge joined the White

opinion and would have dismissed any Baird fee petition filed

after November 5, 1979, in any event.

The delay by Baird counsel was accordingly at least harm-

less, if not highly beneficial to all concerned. The delay avoided

an additional appeal to the First Circuit on the 10 day question

and another petition for certiorari to this Court to be combined

with or decided in light of White.

The First Circuit and district court refused to examine the

meticulously itemized fee petition or to analyze the complex

considerations in any depth at all. On a bare motion to dismiss,

without evidence, the district court made inferences and drew

numerous conclusions that have utterly no basis in the record.

7. Grounds Of The Motion To Dismiss

The Attorney General’s Motion to Dismiss alleged two

grounds for denying all compensation to Baird counsel, name-

ly:

1. Plaintiffs application for attorney's fees, which was

filed almost four years /sic] after this [district] Court’s

final judgment in this case, is untimely ur, alternatively,

barred by laches.

*** [and]

4. This Court lacks jurisdiction to award attorney’s

fees for services performed in connection with the

proceedings in the Supreme Judicial Court of Massachu-

setts. (A 98-99).*

The first ground misstates the relevant dates. On October 1,

1979, this Court denied rehearing after the second appeal in

*A = Appendix filed with First Circuit.

8

this case. 444 U.S. 887. The Clerk of the District Court made a

last docket entry thereafter on October 25, 1979, stating:

“Judgment received .. .” At that time plaintiff became the

“prevailing party” under 42 U.S.C. § 1988, after almost five

years of (uncompensated) litigation to the day.

Plaintiffs’ counsel then filed their fee petition and extensive

supporting documentation in April, 1982, less than two and

one-half years after becoming the “prevailing party.” The four

year figure is misleading and immaterial.

Bellotti supporte’ his contention for laches with two princi-

pal factual contentions made in very general terms: (1) Assist-

ant Attorneys General who worked on this case were no longer

employed; and (2) the storage files in Waltham, Massachu-

setts, were hard to retrieve.

The affidavit of Michael Eby stated in part:

. . . [My] recollection of the precise nature, quality, and

amount of the services rendered by various counsel for the

laintiffs . . . in this case is extremely limited. i therefore

oubt that I could be of much assistance. . . in evaluati

0 reasonableness of. . . [the] applications for attorney’s

ees.

Former assistant attorney general Michael Meyer used iden-

tiical boilerplate language, as did the similar affidavits of as-

sistants Margot Botsford, and Stephen Rosenfeld. These are in

the record and appendix filed in the Court of Appeals. (A140-

148).

The Attorney General could not claim and did not offer proof

of surprise. Nor did he allege any detrimental reliance. Signifi-

cantly, he did not deny that sufficient information is available

and in the file to allow judicial determination of a reasonable

attorney’s fee for all or most of the legal work done. See

Affidavit of Harold Hestnes. (A 92).

The burden of proving “laches” rests upon the Attorney

General. Guitierrez v. Waterman S.S. Corp., 373 U.S. 206,

215-16 (1963); Gautreaux v. Chicago Housing Authority, 690

F.2d 601, 611-12 (7th Cir. 1982). The district court did not

9

impose that burden, but instead accepted the boilerplate affi-

davits. The affidavits themselves are self serving. They do not

state anything dispositive and certainly are not sufficient to

cover the elements of a laches defense. Former assistant attor-

ney generals are barely relevant witnesses.

On a motion to dismiss the allegations of plaintiff's petition

and affidavits must be taken as established. Scheuer v.

Rhodes, 416 U.S. 232, 236-37 (1974). Here they were simply

disregarded.

The entire laches defense rests on the general worded very

similar affidavits identified above. The Attorney General ex-

plicitly declined “to conduct any further discovery with respect

to the issues raised by their motion to dismiss” and was “willing

to submit their motion to dismiss on the memoranda that [had]

been filed with the Court.” (A 110).

8. Facts Admitted By The State

The Attorney General, however, adinitted in response to

discovery requests that:

(1) He had “not since the filing of the application for attor-

neys fees requested copies of any materials for use in evaluat-

ing the application from . . . the Court files.” (4 118) (Such a

request might weaken any defense of lost records.)

(2) Every attorney who worked on the defense of this case

is alive and working in the greater Boston area, except one who

is in New York City (and was not a major participant in the

litigation).

(3) Ne attorney who worked for the Attorney Genera! in

this litigation has refused to be consulted, although one would

like to be compensated for his time. (A 118).

(4) “The Baird plaintiffs are not in violation of any local

district court rule regarding the time for applying for an award

of attorney’s fees.” (A 119).

10

(5) “When the Baird plaintiffs filed their fee petition they

were not in violation of any time limit specifically ordered by

the Court for such filing.” (A 119).

(6) Between October 1979 and April 1982 the Attorney

General never actually inquired whether Baird counsel would

pursue their rights to be compensated under the Act of Con-

gress in question. (A 121).

(7) Despite the defendants’ motion to dismiss and memor-

andum filed June 16, 1982, which claimed laches, the defendant

had not by that time even contacted assistants Behar, Eby,

Rosenfeld, and Botsford concerning tiie claims in the fee peti-

tion or defenses to it. (A 122) (Each of those individuals had an

important part in the litigation on the merits.) A 125, 129).

Those significant admissions were disregarded by the courts

below.

In addition, the Attorney General has not denied that the

twelve Hensley factors can be evaluated on the basis of the fee

application and sunvorting plaintiff affidavits. The law review

article by Bellotti suggests that the fee claim has in fact been

evaluated, and that the laches claim was purely an effort to

escape responsibility.

9. Facts Documented By The Fee Application

The fee application, supporting affidavits, and expert affida-

vit of Boston attorney Harold Hestnes, present a comprehen-

sive prima facie case for compensating Baird counsel for the

several years of work they did. (A 36-92). All three Baird

counsel] affidavits detail the time expended by day and number

of hours. (A 43-44, 47-52).

The expert affidavit of attorney Hestnes (A 92-97) filed July

16, 1982, illustrated the feasibility of evaluating the fee appli-

cation from the standpoint of an experienced, independent

federal litigator who had no prior contact with the specific case.

Defendants have never disputed this affidavit.

1]

Mr. Hestnes is a partner at Hale & Dorr. He “examined the

court opinions, docket sheets, briefs, and attorneys’ fees pap-

ers filed in this case.” (A 94). He expressed his professional

opinion in some detail on the reasonableness of the fees re-

quested. (A 94-97).

His analysis followed the criteria now adopted by Hensley

and showed that the laches defense is without merit. The delay

does not preclude a professional evaluation. It only offers an

excuse to disregard an Act of Congress. The courts below

disregarded the affidavit completely.

10. Decisions Below

The district court expressed at length its view of some of the

justifications offered for the delay. This examination did not

include most of the reasons stated by Baird counsel. The Court

of Appeals also focused entirely on its view of the delay, with-

out considering the Act of Congress nor the strong position

taken by this Court in cases such as Hensley v. Eckerhart,

supra. This preoccupation with the delay led the lower courts

into serious error with dange ous implications for busy litigat-

ing civil rights attorneys.

REASONS FOR GRANTING THE WRIT

I. The Court Of Appeals Disregarded The Twelve Factors

From Hensley v. Eckerhart (U.S. 1983), And The Strong

Purposes Of the Act Cf Congress, By Totally Denying Civil

Rights Attorney's Fees To Prevailing Counsel In Bellotti

v. Baird (I & Il) Who Had Delayed Applying Until Shortly

After White v. New Hampshire Dep’t Of Employment Secu-

rity (U.S. 1982).

This Court in Hensley v. Eckerhart, 103 S.Ct 1933 (1983),

examined the factors which determine a reasonable attorney’s

compensation award under 42 U.S.C. § 1988. The Court re-

viewed Hensley and vacated an Eighth Circuit judgment be-

cause “the District Court’s opinion did not properly consider

the relationship between the extent of success and the amount

of the fee award.”

12

Here the First Circuit erred far more seriously, did not even

cite to Hensley, and disregarded the twelve factors discussed

by Hensley and emphasized in the legislative history. This

error in approach dilutes an important Act of Congress and

reverts to the era when fee availability depended upon the

circuit in which one litigated.

The Sixth circuit has cautioned that the Civil Rights Attor-

ney’s Fees Awards Act of 1976 is not

an equitable remedy, flexibly applied in those circum-

stances which the court considers appropriate, it is now a

statutory remedy, and the courts are obligated to apply

the standards and guidelines provided by the legislature

in making an award of fees.

Northcross v. Board of Education, 611 F.2d 624, 632 (6th Cir.

1979) (Emphasis in opinion), cert. denied, 447 U.S. 911 (1980),

In Northcross the losing defendants objected to a 1974 fee

application that sought compensation for work fourteen years

earlier back to 1960. The Courts of Appeals found no proof of

“prejudice or harmful effects . . . as a result of the plaintiffs’

delay.” Jd. at 635. ln that case, as here,

(t]he prejudice, if any, has inured to the plaintiffs’ attor-

neys who have provided years of service without compen-

sation in hand. /d. at 635.

The fact that the attorney general's assistants have entered

private practice in Boston is a minor inconvenience to the

Commonwealth. It is not critically relevant to the determina-

tion required by Hensley and the Act of Congress. This is

evident from an analysis of the twelve factors in Hensley and

the relevance to them, if any, of delay.

As to Hensley factor (1), the “time and labor required,” are

itemized in daily detail by the time records and work product

submitted with the fee application. 103 S.Ct at 1937 n.3.

(2) The “novely and difficulty of the questions,” Jd. n.3, can

be evaluated from a number of perspectives. The place of

Bellotti (I) and (11) in the jurisprudence of the right of privacy

can be understood from the opinions of the district court and

this Court.

13

(3) The “skill requisite to perform the legal service proper-

ly,” Id. n.3, can be readily determined by evaluating the plead-

ings, briefs and opinions. This determination is no more diffi-

cult in 1984 than it was in 1979.

(4) The “preclusion of [other] employment. . ,” /d. n.3, for

Baird counsel is not a complex issue in this case. The docket

sheets and opinions show the time pressures wt ch had to take

precedence over other legal business. This factor is clear and

not diminished by the passage of time.

(5) The “customary fee,” Jd. n.3, is not a complicated mat-

ter to learn. Lawyers in Boston and elsewhere can establish

their current market hourly rates.

(6) The largely contingent nature of the fee is a background

fact that is the same in 1984 as in 1974. Time has not changed

that fact. Baird counsel worked for many years with little pay.

(7) The “time limitations . . . ,” Jd. n.3, involved are well

documented in the written material which is part of the files in

this case. Emergency work to seek injunctive relief was a

frequent occurrence in this litigation.

(8) The “amount involved and the results obtained,” /d.,

are clear from the written opinions in this litigation. Baird

counsel achieved excellent results with maximum effort and

minimum pay.

(9) The “experience, reputation, and ability of the attor-

neys,” Jd, n.3, can also be evaluated as well in 1984 as in 1979.

Counsel affidavits documented their background. The briefs

and transcripts reflect these to the extent they have bearing on

the ultimate fee determination.

(10) The “undesirability” of the case can certainly be

understood as well in 1984 as in 1974. Abortion has not become

a less controversial subject with the passage of time.

(11) The “nature and length of the professional relationship

with the client,” /d., is a further factor that can be evaluated as

well as in 1984 as in 1979. It is a specific, known fact that was

covered in the affidavits submitted by Baird counsel.

14

(12) Finally, “awards in similar cases,” /d. n.3, are again a

matter of written public record.

The claim by Baird counsel for fees from 1974-1979 can be

evaluated quite satisfactorily by the district court if it fairly

applies the stated factors from Hensley v. Eckerhart, 103

S.Ct. 1933 (1983). To refuse to do so would “yield harsh and

unintended consequences.” White v. New Hampshire, 455

U.S. 445, 452 (1982). The same district court had no difficulty

awarding fees in Brewster v. Dukakis, 544 F.Supp. 1069, 1073

(D. Mass. 1982) (Freedman, J.), although the fee application

was filed “more than two years after the entry of the Consent

Decree and judgment.” /d. at 1073. The court there had far

more complicated calculations to do in awarding “$386,204.01

in attorneys’ fees and costs.” /d. at 1071. However, that court

rejected the Attorney General’s vague claims of prejudice

because “all of these individuals are still employed in eastern

Massachusetts, and are readily available for discussion and

consultation.” /d. at 1073. The same is true here. The Attorney

Generai’s boilerplate affidavits from peripheral potential wit-

nesses have little bearing on the overall fee claim. They should

not be allowed to undercut a substantial claim under an impor-

tant Act of Congress. The law review article by Bellotti even

suggests that the fee claim in this case has already been evalu-

ated.

Il. The Court Of Appeals Arbitrarily Denied Fees To Baird

Counsel In Bellotti I] While Awarding Fees To Planned

Parenthood Counsel For The Same Services.

A most serious departure from the neutral application of

Section 1988 standards occurred in the arbitrary discrimina-

tion against Baird counsel in favor of Planned Parenthood

counsel for the same type of services.

The Court of Appeals awarded fees for the briefing and

argument by intervenor Planned Parenthood counsel in Bellot-

ti JI before this Court, but not the same work by Baird counsel.

15

Both PP and Baird counsel wrote briefs and prepared for

argument in the same time frame. Both counsel argued on the

same side of this Court on the same day. Yet, PP counsel will be

paid. Baird counsel, who chaired the litigation pro bono publico

from 1974 through 1979, will be denied all compensation. This

singling out of Baird counsel undermines the purposes of

§ 1988 in a particular invidious way. The paid attorney is local

from a large Boston firm. The majority of services by Baird

counsel were pro bono by out-of-state counsel hired because of

the highly controversial nature of the litigation. This is the case

with much § 1983 litigation in the fields of voting and educa-

tion. The Court of Appeals’ approach sets a precedent for

discouraging civil rights’ specialists from enforcing other im-

portant legislation beyond their home states.

The reasons for awarding fees to Planned Parenthood apply

with equal force to almost all of the services performed by

Baird counsel from 1974-1979.

Proceedings in this Court involved petitions, briefs, and

transcribed arguments. A fair minded trial court can evaluate

the reasonableness of a § 1988 fee request from the record of

proceedings, including the detailed time records of counsel and

written work product.

The same is true with the first appeal to this Court in 1976,

Bellotti v. Baird, 428 U.S. 132 (1976) (Bellotti I). The same

records exist. The supposedly faded memories of forz.er as-

sistant attorneys general are no bar to evaluating the

reasonableness of the detailed fee petition in Bellotti IJ or

Bellotti I.

Similarly, work on remand from Bellotti J to the Supreme

Judicial Court of Massachusetts is well documented and pre-

served. Baird counsel filed a brief and argued the certified

questions. The hea‘ing was televised for use at a local law

school. Again, a fair minded trial court could evaluate the

reasonableness of those services. Claims of faded memories by

adverse counsel are of the most minimal relevance, and do not

justify disregarding an Act of Congress.

16

The same analysis applies to proceedings in the district

court. Briefing, argument, and testimony are all well docu-

mented. A fair minded trial court can evaluate the reasonable-

ness of the entire fee claim, even without any prior contact with

this litigation. That is to be the case with Planned Parenthood.

An independent judge from the same district has now been

assigned to set those fees, although not involved previously in

any phase of this litigation. App. C, infra, at 32a. The

determination is no different from that routinely made by

other courts in assessing fees for litigation that has lasted five

or ten years. E.g., - Brinkman v. Gilligan, 697 F.2d 163 (6th

Cir. 1988) (per curiam), aff'g 557 F.Supp. 610 (S.D. Ohio 1982)

(delay of two years five months excused where schoo! case

lasted from 1972-1979); Gautreaux v. Chicago Housing Au-

thority, 690 F.2d 601, 603-04, 613 (7th Cir. 1982) (“. . . proceed-

ings that have lasted sixteen years. . .”); Mills v. EltraCorp.,

663 F.2d 760 (7th Cir. 1981) (fees awarded for services ren-

dered in 1969).

In sum, the Court of Appeals seriously departed from ac-

cepted judicial procedure by discriminating against Baird

counsel in favor of Planned Parenthood for work of the same

nature. This Court should grant certiorari, vacate the judg-

ment below, and remand with instructions to set fees for Baird

counsel for services performed from 1974-1979, and to date.

III. The Court Of Appeals Decision Is Inconsistent In Princi-

ple With Decisions By The Sixth And Seventh Circuits.

The First Circuit has been the most reluctant to allow coun-

sel a substantial time interval to recover from protracted,

uncompensated litigation before devoting additional weeks to

a fee petition. This Court has twice unanimously reversed the

First Circuit in matters of delayed fee applications. White v.

New Hampshire Dep't of Employment Security, 455 U.S. 445

(1982); Sprague v. Ticonic National Bank, 307 U.S. 161

(1939).

The Sixth and Seventh Circuit approaches are markedly

different when asked to enforce the Section 1988 Act of Con-

17

gress and award compensation for work dating back many

years. Baird counsel cited these Sixth and Seventh Circuit

cases below, but they were totally disregarded and not even

mentioned in the First Circuit opinion.

The most direct conflict involves the Dayton, Ohio, school

desegregation case, Brinkman v. Gilligan, 557 F.Supp. 610

(S.D. Ohio 1982), affd, 697 F.2d 163 (6th Cir. 1983) (per

curiam). There prevailing counsel delayed two years and five

months in applying for fees. Finally, after a sua sponte court

order, counsel applied for fees involving work from 1972-1979.

The amount of work and sums involved were more complex

than in Bellotti ] & IJ. Yet, the Sixth Circuit had no difficulty

affirming a substantial compensation award under Section

1988.

Conflict with Brinkman exists on the procedure for dealing

with delay and the feasibility of calculating fees for services

performed many years before. The federal court in Brinkman

determined in 1982 a reasonable fee for work from 1972-1979.

The federal court in Baird v. Bellotti, 555 F.Supp. 579 (D.

Mass. 1982), declined to do so even though the fee application

was detailed and extensive documentation was submitted. The

Boston federal court determined that no fee at all was the

better approach. This result not only sets aside an Act of

Congress and disregards the refined analysis of Hensley v.

Eckerhart, supra. It also conflicts with the Sixth Circuit’s

willingness to enforce Section 1988 even to the point al in-

structing counsel to file a fee application.

The conflict in principle with the Sixth Circuit is also illus-

trated by Northcross v. Board of Education, 611 F.2d 624, 632

(6th Cir. 1979), cert. denied, 447 U.S. 911 (1980). There fees

were sought in 1974 for work that dated back to 1960. The Sixth

Circuit in Northcross awarded substantial compensation and

enforced the Fees Act, although interim fees had not been

sought earlier.

_ Further, there are conflicts in principle with Seventh Circuit

decisions awarding fees for legal work done ten years or more

18

before a fee petition was filed. E.g., Gautreaux v. Chicago

Housing Authority, 690 F.2d 601, 603-04, 613 (7th Cir. 1982)

(“proceedings that have lasted sixteen years . . .”); Mills v.

Eltra Corp., 663 F.2d 760 (7th Cir. 1981) (fees awarded for

services rendered in 1969).

Even within the First Circuit fees have been awarded in

litigation dating back ten years. David v. Travisono, 621 F.2d

464, 465 (1st Cir. 1980) (per curiam). Moreover, a delay of

“more than two years” in filing for fees was not considered

prejudicial in Brewster v. Dukakis, 544 F.Supp. 1069, 1073 (D.

Mass 1982) (not appealed). The Brewster decision, disregarded

below, was delivered by the panel member who in 1974 con-

vened the three judge court to hear the Baird v. Bellotti

litigation. This suggests that the denial of all fees to Baird

counsel for their 1974-1979 work was not only erroneous, but

entirely a fortuity of assignment.

Review by this Court would clarify the conflicts in approach

among the circuits. The Sixth and Seventh Circuits appear far

more faithful to the guidelines set by this Court in Hensley v.

Eckerhart, supra, and by Congress in the Fees Act. This

Court should resolve the conflict by summarily vacating the

judgment below and remanding for a fee determination con-

sistent with Hensley.

IV. The Court Of Appeals Should Have Applied An Analo-

gous Three Year State Statute Of Limitations On Claims

Against The Commonwealth, Because There Was No

Other Statute, Local Rule, Order, Or Practice Requiring

An Earlier Filing.

This Court has held that in § 1983 actions an analogous state

statute of limitations should be applied when there is no speci-

fic federal provision. Board of Regents v. Tomanio, 446 U.S.

478, 484 (1980) (three year New York rule applied).

Here counsel had no guidance on timeliness from § 1988

itself. The district court never set the fee matter down for

consideration. The attorney general never moved toward

19

settlement nor any final disposition of the remaining fee prob-

lem. There was no local rule on fee petitions nor any known

custom, although a similar two year delay against these same

state defendants had been held non-prejudicial in Brewster v.

Dukakis, 544 F.Supp. 1069, 1073 (D. Mass. 1982) (not

appealed) (interim fees awarded to counsel who “filed their

application for attorneys’ fees . . . more than two years after

the entry of . . . judgment.”)

However, there was Section 3A of Mass. Gen. Laws Ch. 260:

Petitions founded upon claims against the commonwealth

prosecuted under chapter two hundred and fifty-eight*

shall be brought only within three years next after the

cause of action accures. Added St. 1943, c. 566 § 1.

Section 3A has applied in numerous analogous circum-

stances since 1943. It should have been applied to the present

“claim against the commonwealth . . .”

This Court should grant certiorari and summarily reverse in

light of Tomanio and the analogous three year statute of

limitations. Since the fee claim arose in October of 1979, the

post-White filing was timely, whether or not the pendency of

White tolled the statute.

*Chapter 258 also includes a three year period of limitations. 42 Mass. Gen

Laws Ann. C. 258, § 4, at 249 (Pkt. Pt. 1983-84).

20

CONCLUSION

For the reasons set out, this Court should grant the petition,

vacate the judgment below, and remand with directions to

apply the criteria of Hensley v. Eckerhart, supru, in setting a

“reasonable attorney’s fee” in accordance with the Con-

gressonal intent embodied in the Civil Rights Attorney’s Fees

Awards Act of 1976, 42 U.S.C. § 1988.

Respectfully submitted:

Roy Lucas, Counsel of Record

10400 Whitehead Street

Fairfax, VA 22030

(703) 352-0234

JOSEPH J. BALLIRO JOAN C. SCHMIDT

20 Beacon Street Law Offices of

Boston, MA 02108 F. LEE BAILEY

109 State Street

Boston, MA 02109

la

APPENDIX A

United States Court of Appeals

For the First Circuit

WILLIAM BalIrpD et al.,

P'aintiffs, Appellants,

Vv.

FRANCIS X. BELLOTTI, et al.,

Defendants, Appellees.

APPEALS FROM THE UNITED STATES DISTRICT

COURT

FOR THE DISTRICT OF MASSACHUSETTS

(Hon. Bailey Aldrich,* Senior U.S. Circuit Judge]

Before

Campbell, Chief Judge,

Skelton,** Senior Circuit Judge,

and Breyer, Circuit Judge.

January 13, 1984

CAMPBELL, Chief Judge. Planned Parenthood League of

Massachusetts (PPLM) was an intervening plaintiff, and Wil-

liam Baird was an origina! plaintiff, in protracted civil rights

litigation which was commenced in 1974. They were almost

entirely successful throughout, and they won the final round on

July 2, 1979, when the Supreme Court ruled 8-1 in their favor.

Bellotti v. Baird, 443 U.S. 622 (1979). On October 1, 1979, the

Supreme Court denied rehearing, 444 U.S. 887. Eight months

*Of the First Circuit, sitting by designation.

**Of the Federal Circuit, sitting by designation.

2a

later, on May 29, 1980, PPLM filed its motion for attorneys’

fees under 42 U.S.C. § 1988 in the district court; and 30 months

later, Baird filed his motion for attorneys’ fees. Defendants

thereafter sought dismissal of both motions on grounds of

laches, and the district court granted dismissal after hearing.

This appeal followed.

The district court, Senior Circuit Judge Aldrich, sitting by

designation, set out findings and rulings at length in Baird v.

Bellotti, 555 F. Supp. 579 (1982), which we do not repeat but

which provide a necessary background to this opinion.

The basic issue on appeal is whether the district court

abused its discretion in denying the fees. This in turn depends

on whether Baird’s and PPLM’s lengthy delays in moving for

fees caused sufficient prejudice to warrant the court’s denying

them. In White v. New Hampshire Department of Employ-

ment Security, 455 U.S. 455, 454 (1982) (White), the Court

indicated that section 1988’s authorization to award fees “in

[the] discretion” of the court “will support a denial of fees in

cases in which a postjudgment motion unfairly surprises or

prejudices the affected party.” The delays in the present case

of eight and thirty months were plainly unreasonable. But as

the district court said, “(t]he concept of laches is that a party is

to be forgiven his unreasonable delay, provided it has had no

prejudicial consequences.” 555 F. Supp. at 585.' While fees

under section 1988 are expressly a matter for the district

court’s discretion, and while ordinary principles of laches may

be somewhat tempered, see note 1, the Supreme Court’s refer-

! The district court made the perceptive observation that there exists a

ditference between the application of laches to bar the bringing of a cause of

action (the usual case) and the application of laches to support a denial of

attorneys’ fees. A fees request “although separate, is collateral to, and

closely connected with, judicial proceedings that have otherwise terminated

. .» The advantages of a continuum, and the loss from interruption, differ

from laches in the bringing of a cause action.” 555 F. Supp. at 586. For this

reason, the district court felt that prejudice should arise more quickly in fees

applications than in the more usual case. We agree

3a

ence in White to “unfair surprise” and “prejudice” indicates

that prejudice remains a significant factor. Compare Fulps v.

City of Springfield, 715 F.2d 1088 (6th Cir. 1983) (affirming

finding; that eight-month delay in requesting fees was “patent-

ly untimely” but remanding for determination of actual preju-

dice.

In the present case, after discussing a number of prejudicial

factors created by the delays, the court found as to Baird’s

request “a strong probability of prejudice” and as to PPLM’s “a

probability of substantial prejudice.” It went on to ask

“whether this advance finding can be sufficient, or whether the

court must “conduct a necessarily elaborate fee hearing, and

then determine whether, in fact, there was prejudice.” 555 F.

Supp. at 589. Answering its own question, the court rejected a

further proceeding, reasoning

a party guilty of an unexcused substantial delay should not

be entitled to impose that great burden, and in this in-

stance the court [would impose] the burden on itself and

other litigants as well as . . . on the defendant.

7d. The question, therefore, is whether the prejudicing factors

found by the district court were sufficient to warrant its deci-

sion to deny fees. To answer, we shall consider each applicant’s

situation separately.

a. William Baird

The fees claimed by Baird’s attorneys were for services from

1974 onward, involving about $250,000. The district court

pointed out that the burden of establishing excessiveness, or

countervailing, or regative aspects, of a plaintiff's “lodestar”

figure is normally on the defendant. And the judge is required

to make very specific analysis and findings if he departs from

the plaintiffs lodestar. 555 F. Supp. at 586. It follows that loss

of witnesses or their memorie., or loss of the judge’s own

memory, is likely to be particularly harmful to the defendant.

The district court thus took quite seriously the Attorney

General’s assertion that,

4a

during nae delay, his last knowledgeable assistant

had, indeed, left, very possibly diminishing the interest

and perhaps availability, of departed employees with re-

spect to affording sufficient time for reviewing files and

vefreshing recollections ....

555 F. Supp. 586. The departed assistant was Garrick Cole. In

an affidavit, Cole stated that his present position as an associ-

ate at a private law firm “requires a complete commitment of

my professional time. As a result it would be somewhat diffi-

cult and burdensome for me to assist the Department of the

Attorney General in opposing plaintiffs and plaintiffs-

intervenors’ fee upplications . . . .”

Cole had worked on the underlying case from September of

1975 to August of 1980, and it appears that he had the longest

exposure to, and the best overall picture of, the litigation. Had

Baird moved for a fee several months after denial of rehearing

in October 1979, Cole would have been available to render full

assistance to the Commonwealth. Given the amount ciaimed,

the variety of services covered, and the complexity and dura-

tion of the litigation, we think Cole’s presence was key. Al-

though he remains in Boston, and can presumably be specially

engaged by the Attorney General, the court could properly

find that his availability will be more circumscribed than when

he was the Attorney General’s employee, to the prejudice of

the Commonwealth.

Though Cole does not assert any memory loss, other former

Assistant Attorneys General do. For example, Stephen

Rosenfield, who worked on the case from 1975 to 1977, and left

the Attorney General’s office in August of 1979, calls his recol-

lections of the nature, quality, and amount of services ren-

dered by opposing couns: | “extremely limited,” as does

Michael Meyer, who worked on the case from May 1977 to

February 1979. Meyer left in October of 1979. While Meyer

and Rosenfeld had left before the Supreme Court denied re-

hearing on October 1, 1979, the district court could properly

determine that their recollections and those of other assistants

would have been better if the hearing had been held in the

5a

winter or spring of 1980, as would have happened had a timely

motion been filed.

Baird downplayed the departure of the assistants, arguing

that it is for the court to evaluate the reasonableness of the fees

requested. Having participated in most of the proceedings for

which fees were sought, the district judge agreed that his own

estimate of the value of the services was of importance, but

pointed out that in at least one instance where he had “reserva-

tions” about the quality of Baird’s representation, he could no

longer recall the specifics. Considering only prejudice to the

defendant, not prejudice to the judiciary,’ the court observed

that it would be to “defendant’s cost” were it to fail to remem-

ber “events or circumstances rebutting or diminishing any of

plaintiffs’ claims, which they assert to be prima facie until

discounted.” 555 F. Supp. at 587. We agree that loss of a

parvicipating judge’s memory is another element of prejudice

in a situation such as this.

Baird argues that he should not be charged with a 30-month

delay because after our decision in White v. New Hampshire

Department of Employment Security, 629 F.2d 697 (1980)

(White I), came down in Augusi 1980 (holding that attorneys’

fees requests must be filed within ten days), it would have been

futile for him to have filed his motion until our decision was

reversed by the Supreme Court. That argument fails on two

counts.

First, as tne district court pointed out, issuance of White J in

August 1980, would not have held up Baird’s fees ciaim had

Baird proceeded with reasonable dispatch during the preced-

ing period, since, had he done so, the fee issue would have been

? While prejudice to the party from whom fees are sought is of primary

significance, prejudice to the judiciary is also materail. Courts today are

seriously congested. It is unfair to other litigants if memories diminished by

unfounded delay cause longer fees proceedings. This point is related to that

made by the district court when it spoke of the harm caused by interruption

of the “continuum.” See note 1, supra.

6a

heard and resolved before August 1980. Baird first learned of

his victory when the Supreme Court’s decision came down on

July 2, 1979. He could have started putting together a fee

motion immediately thereafter. Especially in light of this, the

district court felt that it was reasonable to have expected him

to move for a fee within 60 days after the October 1, 1979,

denial of rehearing. Had he done so—indeed, had he moved

within even twice or treble that time’—his motion would have

been heard and doubtless decided before our decision in White

I came down. We think, therefore, that the further delay, and

any prejudice therefrom, resulting from White J can be laid at

Baird’s own doorstep.

Second, even if we weve to count against Baird only the delay

from October 1, 1979 until August 1980, when White J came

down, the consequences were suff.ciently prejudicial to justify

denial of fees in a matter of this complexity. Cole left the

Attorney General's office in August of 1980; thus prejudice due

to his absence was complete by the end of the ten months. Some

prejudice can also be inferred from the normal erosion of

memories over the ten-month period. In Baird’s case, unlike

PPLM’s, the services to be evaluated went back to 1974 and

they included both trial and appellate activities. Baird, more-

over, had switched counsel in midstream, requiring inquiry

into whether work done by new counsel needlessly duplicated

that of old counsel. See King v. Greenblatt, 560 F.2d 1024 (1st

3 In determining what time was reasonable, the district court took note of

our White I] decision, 679 F.2d 283 (1982), in which we held that a four-and-

one-half month delay, although “considerable,” was not so extreme that the

court abused its discretion in accepting it. The court below commented, “{ilf,

even with special circumstances, four and a half months is ‘considerable,’ how

much more are the deiays here, if there were none.” 555 F. Supp. at 582.

In White I/, of course, we began with a district court’s prio determination

that four-and-one-half months was acceptable in the circumstances. Section

1988 confers primary discretion upon the district court, not this court. The

question is not what we ourselves would do but whether the district court

acted unreasonably. Here we begin with a district court’s determination that

a period far longer than four-and-one-half months was unacceptable.

7a

Cir. 1977), cert. denied, 488 U.S. 916 (1978). While the defend-

ant’s and the court’s task of reconstruction would have been

hard enough had a timely motion been filed, a delay of this

order plainly added to their difficulties.

We therefore hold that the district court was within its

discretion in finding that the prejudicial elements with respect

to Baird’s fee request created “a strong probability of preju-

dice.” The factors it enumerated, when coupled with the ex-

traordinary, unjustified length of the delay,‘ constitute a level

of actual prejudice sufficient to mest the Supreme Court’s

standard for the denial of attorneys’ fees under 42 U.S.C.

§ 1988. White, 455 U.S. 445, 454 (1981). Bearing in mind that

the district court, not ourselves, retains primary discretion in

these matters, we see no basis to reverse its denial of fees to

Baird.

b. PPLM

PPLM’s lesser eight-month delay was also, as we have said,

unreasonable. Additionally, it was unjustified—counsel was

simply too busy to be bothered.

However, we do not agree with the district court that

PPLM’s delay was shown to have been prejudicial. We distin-

guish between Baird and PPLM primarily because the work

for which PPLM’s attorneys sought compensation is so much

more easily appraisable. We are not persuaded that the eight

months that went by made it significantly more difficult for the

district court to appraise, or the defendant to challenge, the

services said to have been performed. The services in Baird

* The 30 months in Baird’s case comes close to a delay so long that courts

might infer prejudice simply from its length, without more. (Baird’s 30-

month delay was nearly four times longer than PPLM’s.) See note 1, supra.

Compare McClintock, Equity § 29 (2d ed. 1948) (absent prejudice, a long

delay does not amount to laches) with Walsh, Equity § 31 (1954) (no hard and

fast rules as to what amounts to laches); see generally Re, Remedies at 527 &

n.59 (1982). We need not, however, decide this point as there was adequate

extrinsic indication of actual prejudice.

8a

related to a number of complex trail and appellate proceedings

over a five-yes.r period, but PPLM’s work consisted of arguing

and briefing a single case in the Supreme Court, namely Bellot-

tiv. Baird, 443 U.S. 622 (1979), argued in February 1979.° The

district court’s own memory of counsel’s performance is not

involved.

While recognizing this, the district court felt that the pas-

sage of time had created prejudice—at least to the extent thata

longer fees hearing might be required. With all respect, we

think there is insufficient support for such an inference.

The district court mentioned a number of facts from which it

derived prejudice: First, the number of hours claimed, 880, is

so great as to be “entirely foreign to the court’s experience.”

555 F. Supp. at 598. This means, it said, that “unusual scru-

tiny” is called for, a requirement which the passage of time

makes more onervus. Jd. Second, and related, is the issue of

possibility unnecessary duplication within counsel’s law firm,

i.e., the affidavit lists four people spending 80 or more hours

apiece, and 118 apparently interoffice conferences. Third, the

court questioned whether much of the brief and argument had

not already been foreshadowed in prior lower court opinions—

to the point that much of counsel’s time charges reflected a

mere gilding of the lily. “[A]t some point, fairness and

diminishing returns dictate that charges be not further run up

against an opponent.” Final! , the court noted that Garrick

Cole had left the Attorney General’s office in the summer cf

1980. Had the fees request been filed within two or four months

from October 1, 1979, Cole would have been fully available and,

of course, the matter would have been wrapped up before our

decision in White I, which came down in August 1980 (with the

5 The district court described the work as follows:

Not only were the services relatively more recent, but they were

co! to resisting defendant's second appeal, viz., a motior and brief

to affirm, a principal brief, obtaining leave to argue orally, and appellate

nt, and were thus of a type simpler, and more easily apprais-

a. than Baird’s totality.

9a

practical effect of putting fees matters on ice until the Supreme

Court reviewed the question).

Although we regard some of the above factors as prejudicial

with respect to Baird’s claim, which related to multiple

proceedings over five years, we find their prejudicial effect on

PPLM’s to be far less obvious. We do not see how the passage

of time could much affect the court’s ability to determine

whether counsel’s work was duplicative or unnecessary. For

example, comparison of vounsel’s Supreme Court brief with

the prior opinions of the three-judge district court would suf-

fice to indicate how much duplication was involved there. To be

sure, Cole’s presence vill help the defendant, but Cole is

practicing with a Bosion firm, and for a one-shot matter like

this, as contrasted with Baird’s five-year litany, he seems

sufficiently available. While the passage of time will have

blunted the district court’s recollection, it is hard to see how

recollection has much bearing in deciding whether the brief

and arguments in the Supreme Court were worth 880 hours or

only one-third of that. Even by the fall of 1979, the court had

been away from the case for over a year. Moreover, in the

unlikely event an item should arise as to which forgetfulness or

absent witnesses due to elay are a real factor, the court’s

discretion under section 1988 is broad enough to permit it to

disallow the item without prolonged inquiry.

In sum, given a fge claim where the basic issue is to evaluate

services rela‘ive to a single appellate brief and argument, we

are unable to see that PPLM’s delay, albeit excessive, caused

sufficient prejudice to deny any fee at all. We therefore vacate

the court’s denial of PPLM’s fees request, and remand to the

district court with directions that it establish the amount of,

and award, that fee. We repeat that the court’s discretion on

remand includes the right to reduce the fee by whatever

amount, if any, it finds proper to protect the defendant (or the

court itself) against possible adverse consequences attribut-

able to plaintiff's original unreasonable delay should the court,

on remand, actually identify such.

10a

It might be questioned why Baird’s fees request should not

be similarly treated. The answer two this, as already indicated,

is that material prejudice was shown in his case, based on the

length and complexity of the services to be evaluated. When

unreasonable delay is coupled with a demonstrated likelihood

of actual prejudice, the district court is fully warranted in

denying a fee altogether. See White, 455 U.S. at 454.

The time and effort expended by two courts on this matter

leads us to repeat our earlier suggestion made in White I], 679

F.2d at 285, that the district courts in this circuit adopt a local

rule, as approved by the Supreme Court in White, 455 U.S. at

454, fixing a definite time within which fees requests must be

filed. A. rule will prevent recurrence of cases of this nature.*

We affirm as to Baird’s fees request, and vacate and remand

as to PPLM’s.

So ordered.

®In White I] we recommended adoption of a local rule requiring a fee

request to be filed within 21 days after judgment. Twenty-one days was the

period mentioned in an Eighty Circuit decision cited by the Supreme Court in

White.

Upon rethinking, we are now inclined to recommend that a local rule

contain a longer period, such as 45 or 60 days. This longer period will give all

parties time tv learn whether an appeal has been filed—and, if so, to move to

extend the period for requesting a fee until some specified time after the

appeal is resolved. The difficulty most often mentioned in a hard-and-fast

local rule is that the party who prevails in the district court may not continue

to prevail on appeal, thus losing entitlement to a fee. This problem can be met

in various ways, one of which would be to draft the rule to provide that a fee

request must be filed within 45 or 60 days folowing entry of judgment unless,

upon motion filed within such period, the court for good cause shown extends

the cime for filing the fee request. (If post-judgment motions are filed, the

local rule might also want to defer the running of the 45 or 60 days until the

motions are decided, see Fed. R. App. P. 4(aX4).)

Where a local rule is promulgated, this court will strongly support an

insistence upon its strict observance.

lla

APPENDIX B

William BAIRD, Mary Moe, Gerald Zupnick, M.D.,

Parents’ Aid Society, Inc. et al., Plaintiffs,

Vv

Francis X. BELLOTTI, Attorney General, et al.,

Defendants.

Jane Hunerwadel et al.,

Defendants-Intervenors.

Civ. A. No, 74-4992-A.

United States District Court,

D. Massachusetts.

Dec. 13, 1982.

OPINION

BAILEY ALDRICH, Senior Circuit Judge.*

The single matter dealth with in this opinion is defendants’

motion to dismiss for lateness plaintiff-intervenors’ and plain-

tiffs’ applications for attorney’s fees under 42 U.S.C. § 1988,

filed 8, and 30 months, respectively, after the Supreme Court

had denied a petition to rehear its decision affirming this

court’s judgment in their favor. Counsels’ services were ren-

dered in litigation brought to declare unconstitutional a Massa-

chusetts statute which required a minor to obtain parental, or

judicial, consent to an abortion. Original plaintiffs were Wil-

liam Baird, his non-profit abortion and counseling clinic, Par-

ents Aid Society, Inc., Mary More, an unmarried minor sever-

al weeks pregnant, as an alleged class representative, and

Gerald Zupnick, a physician who performed abortions profes-

sionally. Prior to defendants’ second, and final, appeal, to the

Supreme Court, Planned Parenthood League of Massachu-

setts (PPLM) and certain others were permitted to intervene

as parties plaintiff. Defendants were the Massachusetts Attor-

ney General and other appropriate state officials. For con-

venience, original plaintiffs will be referred to as Baird, in-

12a

tervenors as PPLM, and all, jointly, as plaintiffs. Defendants

will be referred to simply as defendant.

I Background

The action was commenced as a three-judge district court

matter under 28 U.S.C. §§ 2281 & 2284 in October, 1974. It

resulted in six published opinions, the last of which, Bellotti v.

Baird, 1979, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797, was

decided on July 2, with rehearing denied October 1, 1979.'

Nothing occurred thereafter until May 29, 1980, when PPLM

filed a motion for attorney’s fees, together with a supporting

affidavit detailing their services, a brief memorandum of law to

aid in their appraisal, seven pages of abstracts of First Circuit

and other circuit fees cases believed pertinent, and computer

printouts detailing the individual items of work performed.

These documents were sent to the deputy clerk in Springfield,

Massachusetts where Judge Freedman, the district judge

originally drawn, was then permanently stationed.

Defendant filed no response, probably through oversight,

perhaps due to too many assistants, who, by that time, had

moved on to other matters. Alternatively, it is possible he was

waiting for Baird wrote Judge Freedman the following letter.

' The earlier five were Baird v. Beiotti, D.Mass., 1975, 393 F.Supp. 847;

Bellotti v. Baird, 1976, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844p Baird v.

Bellotti, D.Mass., 1977, 482 F.Supp. 854; Baird v. Attorney General, 1977,

371 Mass. 741, 360 N.E.2d 288; and Baird v. Bellotti, D. Mass., 1978, 450

F.Supp. 997. Except for a temporary set-back due to a mn 7-found desire by

the Attorney General for abstention, coupled with representations by him

about the Massachusetts statute—-which proved incorrect—plaintiffs were

uniformly successful.

? Balliro replaced Lucas in April, 1977, just prior to the hearing in this

court that led to the ruling in plaintiffs’ favor affirmed by the Second Su-

preme Court decision.

13a

LAW OFFICES

JOSEPH J. BALLIRO

65 EAST INDIA ROW

BOSTON, MASSACHUSETY7S 02110

AREA CODE 617 227-5822

JOAN C. SCHMIDT

MARK G. MILIOTIS

June 17, 1980

John C. Stuckenbruck,

Deputy Clerk

United States District Court

436 Dwight Street

Springfield, MA 01103

Re: William Baird, et al. v. Francis X.

Bellotti, et al.

Civil Action 74-4992-F

Dear Mr. Stuckenbruck:

Kindly inform the Court that plaintiffs counsel are in the

process of preparing their Motion for Attorney's Fees and

Costs in above entitled matter. We anticipate filing our

motion, accompanying affidavit and memorandum of law in

approximately two to three weeks.

Very truly yours,

/s/ Joan C. Schinidt

Joan C. Schmidt

JCS/dpi

ee: Gerrick F. Cole, Esq.

Assistant Attorney General

One Ashburton Place

Boston, MA 02108

Brian A. Riley, Esq.

l4a

40 Court Street

Boston, MA 02108

John H. Henn, Esq.

Foley Haig & Elliot

10 Post Office Square

Boston, MA 02109

This undertaking was not complied with. Nothing further oc-

curred until April 12, 1982, when counsel for PPLM wrote

Judge Freedman requesting that its motion he heard, staging

that he had not made the request earlier because of the

Pendency of White v. New Hampshire Department of Employ-

ment Security, post, now decided. Three days later counsel for

Baird served in hand, aid on April 20, filed a motion for

attorney’s fees supported py extensive affidavits and memor-

andum of law.

{I} At this point Judge Freedman requested the writer of

this opinion to substitute for him as principal district judge.

This request was accepted. The court now rules that all mat-

ters following the Supreme Court’s second decision aresingle

judge matters, and, accordingly, proceeds alone to decide the

motion to dismiss. See Rosado v. Wyman, 1970, 397 U.S. 397,

400, 90 S.Ct. 1207, 1211, 25 L.Ed.2d 442; Public Service Com-

mission v. Brashear Freight Lines, Inc., 1941, 312 U.S. 621,

625, 61 S.Ct. 784, 786, 85 L.Ed. 1083; Mader v. Crowell,

M.D.Tenn., 1981, 506 F.Supp. 484, 485-86.

II Motion to Dismiss

On April 29, 1982, defendant filed a notice of opposition to

Baird’s motion and a motion to dismiss PPLM’s motion. By an

amplified consolidated motion, filed on May 20, defendent

moved to dismiss all motions, giving the following reasons.

“1. Plaintiff's application for attorney’s fees, which was

filed almost four years after this Court’s final judgment in

this case, is untimely or, alternatively, barred by laches.

l5a

“2. Plaintiff-intervernors’ application for attorney’s fees,

which was filed almost one year after the final decision of the

United States Supreme Court and supplemented almost

three years after that decision is untimely or, alternatively,

barred by laches.

“3. Plaintiff-intervenors’ application for attorney’s fees

should be dismissed for lack of prosecution, since plaintiff-

intervenors took no action on that motion for almost two

years after it was filed.”

A. Lack of Prosecution

(2, 3) PPLM’s counsel has filed an affidavit, which the

court accepts, stating that counsel was initially reluctant to

press the court in the summer of 1980 with a motion which

presented substantial material. By the same token, the court

notes that since the court and the several lawyers are unlikely

to synchronize their summer vacations, by waiting until May

29, 1980, PPLM was almost necessarily precluding a hearing,

and perhaps any other meaningful activity, until fall, thereby

approaching a full year even from the denial of rehearing.

Meanwhile, on August 12, 1980, the Court of Appeals decided

the case of White v. New Hampshire Department of Employ-

ment Security, 1 Cir., 1980, 629 F.2d 697 (White I), holding

that attorney’s fees must be applied for within 10 days of final

judgment, pursuant to F.R.Civ.P. 59e). While pondering this

imposing chstacle PPLM’s counsel stated he learned that cer-

tiorari had been applied for, and, later, granted, and so con-

cluded to wait. Six weeks after the Court reversed the Court of

Appeais, White v. New Hampshire Department of Employ-

ment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325

(1982) (White II), PPLM requested that its application be

heard.

The court finds PPLM’s delay in marking, as distinguished

from filing, reasonable under the circumstances. Likewise, the

court does not charge defendnat with failure to file his motion

to dismiss sooner. PPLM has suffered no prejudice, and de-

fendant’s motion was prompt as to Baird.

l6a

B. Timeliness

With respect to defendant’s claims that plaintiffs’ applica-

tions were “untimely or, alternatively, barred by laches,”

there is no issue of timeliness in the strict calendar sense, the

Court having ruled in White II that there was no applicable rule

with a time provision. The Court did not decide whether the

matter came under F.R.Civ.P. 54(d) and 58, which set no time,

or under no rule at all and was purely equitable. In either

event, however, there are serious questions of timeliness in

the broader sense.

In White, plaintiffs counsel, five days after a consent judg-

ment, raised the matter of fees with defendant’s counsel, and

sought, unsuccessfully, to confer on the amount. Four and a

half months later White filed his application. Defendant re-

sponded that the issue was disposed of by the consent decree.

The court ruled otherwise, and proceeded to award a fee.

Defendant appealed, claiming, inter alia, that the fee applica-

tion was untimely in light of Rule 5%e). The Court of Appeals

agreed, White I, but was reversed by White II, the Court

remanding the case for further consideration.

In White It the Court, describing a fee award as costs in the

sense of available only if the party prevails, but “collateral” and

“separable” and not within Rule 59%e) and its ten day require-

ment, stated that the imquiry should be whether delay “unfair-

ly surprises or prejudices the affected party.” It added that

negotiation before filing is desirable, but that there are advan-

tages to promptness, and a local rule, such as 21 days from final

judgment, could be appropriate. It found it unnecessary to

decide whether fees are costs under Rule 54(d) and 58, but

noted that, in any event, the district court has discretion to

deny motions filed with “unreasonable tardiness.”

On remand, White v. New Hampshire Department of Em-

ployment Security, 1 Cir., 1982, 679 F.2d 283 (White III), the

court analyzed the district court’s decision and concluded chat

it had in effect found that there had been no unfair surprise or

17a

prejudice. It did not, however, stop there, but considered

whether the court’s decision was reasonable.

“(There was no applicable local rule in force. In its absence,

the determination of timeliness rested within the sound dis-

cretion of the district court. The delay here—approximately

four and one-half months after the entry of the consent

decree—was considerable, but it was not so extreme, given

ail the other circumstances of this case, as to necessitate a

finding that the request was untimely, and the district court

did not make one. See 629 F.2d at 701. Although well aware

of the time involved, the district court plainly did not con-

sider the motion as having been delayed unreasonably. Find-

ing no abuse of discretion with this determination, we pro-

ceed to NDHES’s other challenges to the award.” White III,

at 285.

Of particular significance is the phrase, “not so extreme,

given all the other circumstances.” There were two; that fees

were discussed prior to the entry of judgment, and that plain-

tiffs demand was brought to defendant’s attention five days

after judgment was entered. If, even with special circum- —

stances, four and a half months is “considerable,” how much

more are the delays here, if there were none. In this last, the

plaintiffs may not stand alike.

(a) Baird’s Claim.

As previously noted, Balliro and Schmidt closely followed

PPLM’s filing with their June 17 letter stating that Baird

would file shortly. Since section 1988 makes ‘he party, not

individua counsel, the one entiltled, this letter n._st be taken

as speaking also for the services of former counsel, Roy Lucas,

of Washington, D.C.? Although the court pointed to this

undertaking at the hearing on the present motion, it has never

been informed why it was not carried out.’ Balliro and Schmidt

3 Baird was the only one who requested an oral hearing. Immediately

before the assigned date, he withdrew the request. The court concluded to

18a

executed affidavits, containing their diary entries, on August

11, 1980,‘ but failed to file them until April 20, 1982, when

Lucas filed his. Accompanying the affidavits was an extensive

memorandum, signed by all three attorneys, but manifestly

prepared by Lucas. All threee Baird attorneys also signed the

memorandum opposing the motion to dismiss, although, again,

it appears to have been written by Lucas. What is stated

hereafter is taken therefrom.

Baird, unlike PPLM, post, makes no claim that the delay in

filing his motion for fees was due to counsels’ other preoccupa-

tions: rather, it was due to the state of the law. After saying he

did not become a prevailing party until October 25, 1979, Baird

says,

“The principal guide at that time came from the Supreme

Court decision of Sprague v. Ticonic National Bank, 307 U.S.

161 [59 S.Ct. 777, 83 L.Ed. 1184] (1939)/”

Sprague is, indeed, a guide a guide in one respect. Defend-

ant, quire unaccountably, argues the desirability of filing for

attorney’s fees immediately after the district court’s judgment

hold the hearing nevertheless, and counsel appeared and argued. Thereafter

the court inquired of all counsel hether they had done any substantial other

work not entered in their diaries. Nothing was vouchsafed by Baird.

‘ Balliro’s affidavit terminates,

July 2, 19799Review of opinion from U.S.

Supreme Court, conference with

clients. 2.0 {hrs.]

Schmidt’s terminates,

July 2, 1979Review of opinion from U.S.

Supreme Court; conference with Mr.

Balliro and clients. 2.0 (hrs. ]

July 1, 1980

through

August l, ,

1980 Preparation of bill 15.0 (hrs. ]

19a

on the merits, so that any appeal from the court’s action may be

consolidated with the substantive appeal. Sprague may well be

taken as opposed to that view — as is this court, in the present

case.° However, it in no way suggests delay after the initial

judgment had become final, the basic issue at bar. In Sprague

the fee application was filed two months before the Supreme

Court’s affirmaiice of the judgment. See 307 U.S., at 163, 59

S.Ct. at 778. See, also, the decision below, cited by the Court,

Sprague v. Picher, D.Me., 1938 23 F.Supp. 59.

Next, Baird says that in October, 1979 there were questions

of law pending before the Supreme Court which, if decided

against him, could make his pursuit of fees fruitless.

“In addition (to Sprague], several important and potentially

illuminating cases were already before the Supreme Court.

“On October 1, 1979, the Court granted certiorari in Maher

v. Gagne [Gagne v. Maher], 5954 F.2d 336 (2d Cir.1979). 444

U.S. 824 [100 S.Ct. 44, 62 L.Ed.2d 30]. The next week the

Court agreed to hear.

“These five cases, individually and collectively, had

overwhelming significance for the Baird fee issue, Adverse

rulings on some issues could have eliminated the claim entire-

ty. Favorable decisions and a strong reinforcement of Con-

gressional purpose could strengthen and simplify the Baird

disposition.

“By waiting, plaintiff's counsel were conserving the time of

this Court, not violating any local rules, and exercising reason-

able legal judgment. It would have been precipitous, if not

irresponsible, to charge ahead, inviting unnecessary disputes,

appeals, and a waste of judicial time.”

A reiew of these cases, as confirmed by the ultimate deci-

sions, disc'oses no guidance that could have been expected,

* Defandant’s contrary argument is premised on the assertion that this

court’s 1975 decision was a “final judgment.” Of course it was not.

20a

with the most minor exceptions. It is to be borne in mind that

the Court had already held, in Hutto v. Finney, 1978, 437 U.S.

678, 98 S.Ct. 2565, 57 L.Ed.2d 522, that the Eleventh Amend-

ment was no bar to an award of counsel fees. The issues in

Baird’s five cases did not threaten this holding, and in no way

indicated that it would be “precipitous, if not irresponsible, to

charge ahead” nd file for fees. Rather, to have been deterred

by their “potentiality” would seem a counsel of catatonic

arrest.°

Nor does it appear that these cases in fact motivated Baird at

the time. There are no diary entries in October, 1979; the first

entry with respect to Baird’s seeking fees is on March 6, 1980.

“Confer w/client & co-counsel in Boston on possibility of § 1988

fee recovery in light of pending cases & recent legal research.

(RL) 2.0” The next is “3/80 Legal research by paralegal CI on

CA 1 fee cases & others relevant to a Baird counsel claim. (CI)

16.5.” If it be thought that counsel had general knowledge of

the five October cases and was awaiting their resolution to

avoid wasting time, nothing had occurred in March. It is true

that they received mention on 6/26/80, after the end of term,

® Gagne v. Maher, 2 Cir., 1979, 594 F.2d 336, aff'd 448 U.S. 122, 100 S.Ct.

2570, 65 L.Ed.2d 653, involved plaintiffs’ right to fees incurred in the fee

proceeding itself-—already decided in favor of plaintiff in Lund v. Affleck, 1

Cir., 1978, 587 F.2d 75, 77. A decision here would be ultimately relevant, but

not to the moticn itself. Carey v. New York Gaslight Clug, Inc., 2 Cir., 1979,

598 F.2d 1253, aff'd, 447 U.S. 54, 100 S.Ct. 2024, 64 L.Ed.2d 723, could,

perhaps, have been cited in defeating defendant's contention that fees were

not recoverable in connection with the certification proceeding in the

Massachusetts court held at the Supreme Court's direction, a claim we could

only label preposterous to begin with. The issues in the other three cases,

Consumers Union of the United States, Inc. vy. American Bar Associaticn,

E.D.Va., 1979, 470 F.Supp. 1055, vacated and remanded, sub nom.

Supreme Court v. Consumers Union of the United States, Inc., 446 U.S.

719, 100 S.Ct. 1967, 64 L.Ed.2d 641; Thiboutot v. Maine, Me., 1979, 405 A.2d

230, affd 448 U.S. 1, 100 S.Ct. 2502, 65 O. Ed.2d 555; and Mahoning Women's -

Center v. Hunter, 6 Cir., 1979, 610 f.2d 456, vacated and remanded, 447 U.S.

918, 100 S.Ct. 3006, 65 L.Ed.2d 1110, are not even remotely related.

2la

“Study impact of N.Y. By rhb (6/9), Va. Consumers

(6/2), Maher v. Gagne (6/25), Thiboutot (6/25), and Mahon-

ing (6/16), on noeeiblliey of fees in case. (RL) 4.0”

but, in view of: Lucas’ thoroughness in spending over 200 hours

on the fee issue, the court attaches no special significance to

this. If, in fact, he was delaying for their decision, action should

have then ensued. It did not; the next entry was August 12.

“Review fee matter, confer w/JH re: research. (RL) .25”

It was also on August 12 that White I was decided. One may

doubt, however, that non-parties had instantaneous notifica-

tion thereof. The first reference to be found in any diary

entry —“Research New Hampshire case”—comes a month

later. Moreover, we note this singular situation. If the pending

october cases justified delay in preparing the fee application

because “almost any result . . . would preempt the legal re-

search work product of October 1979 through June 1980 to

some extent,” White’s ruling that it was already too late, which

did not stand alone in the circuits and might well be affirmed,

would seem to have been far more threatening than they. Yet,

although “ever” concerned that “hundreds of necessary hours

would be wasted,” in the time between study of the New

Hampshire ca32 and the advent of White II, the Lucas office

spent almost one half of its entire fee preparation time. To

answer this seeming inconsistency by writing off that activity

as “some minimal work” is shocking. On this total record the

court gives no greater weight to the assertion that the state of

the law in October, 1979 was Baird’s reason for not proceeding

at that time. The reason was simply personal choice, now

tarted up.

(b) PPLM’s Claim.

PPLM did not rely on the state of the law, and filed on May

29, incidentally before any of the October, 1979 cases had been

’ Plaintiffs’ counsel continued some minimal work through associates in

the hope that White would not stand.” Baird Memorandum, at 4.

22a

decided. Its excuse was that counsel was otherwise occupied."

A good deal of documentation would be needed for so long a

period, and none was offered. Nor does the court accept

PPLM’s assertion, “As a delay of four and a half months in

White was acceptable. . ., [t]he extra two and a half months is

insignificant. . . .” This is a method of arguing that knows no

limits. Moreover, although seven months from receipt of man-

date on October 25, where PPLM’s proffered excuse for delay

is other demands on counsel there could have been no doubts

after October 1, the date of the denial of the petition. It is

inconceivable that there could have been a second. Indeed,

where the Court had decided 8 to 1, one might ask what doubts

could have been occasioned by the first. PPLM’s seven months

had one month’s certain advance notification, and three more,

close to certain. Quite apart from White’s special circum-

stances, this is far different from White’s four and a half

months.

(ec) Timliness-Conclusion.

The court does not consider there to have been need for

PPLM to consume seven months in any event. It could have

required little legal skill to tabulate book charges, and there

was nothing about its affidavit and short memorandum and

assembly of cases that required particular expert specializa-

tion. Abstracting cases on attorney’s fees would seem a pedes-

trian undertaking.’

* It also spoke of a computer printout problem, but we cannot think of this

in terms of months.

* The court does not know how much time was, in fact, spent on this

matter, PPLM’s counsel stating that he charged “extensive research” to

another case. Although attorney's fees as costs are collected in U.S. Code

Annotated and in West Digest, the court will assume that, in yours, this

could be considerable. On this singie, straightforward subject, however, it

does not assume that it required a matter of weeks, fall and

winter. So far as legal work directed to this case is concerned, it begin

until April 10, 1980 and required to May 29, the date of filing, 18 hours.

Qa

Baird filed much more than this, a memorandum fifty pages

long, in addition to eight pages of abstracts. However, if a

party wishes to do a job in spades (Lucas spent 215 hours on his

fees, as distinguished from 185 hours on the first Supreme

Court appeal) this should not be at the expense in terms of

time—or dollars—of the party on whom the burden falls.

The court agrees that plaintiffs were not obliged to borrow a

lear from Sprague’s book and file prior to the denial of the

petition for rehearing. However, particularly with lead time to

indicate probabilities of being able to file, it sees no reason for

more than a sixty day delay thereafter. This appears to be

normal practice in other fee cases. See, e.g., Johnson v. Snyd-

er, 6 Cir., 1981, 639 F.2d 316 (per curiam); Jones v. Dealers

Tractor & Equipment Co., 5 Cir., 1981, 634 F.2d 180, 181 (per

curiam). But see Gary v. Spires, 4 Cir., 1980, 634 F.2d 772.

Even if the two months were to be doubled, PPLM fell well

short. Baird was not even in sight.

C. Prejudice

(a) The Length of the Delay

Particularly where a claim of prejudice is based upon delay

simpliciter, therre must be two inquiries, how long was the

delay, and what was its effect? The starting point, when there

comes to be “unreasonable tardiness” (White II n. 17), has

already been considered. There are questions as to the other

end. With respect to Baird defendant claims the full period to

April 20, 1982, namely, some two and a half years. Baird says

the interval between White I and White II should be deducted.

The court disagrees. In the first place, Baird was nowhere near

ready to proceed on August 12; there is nothing to indicate that

he would have filed for months. Moreover, there is a deeper

principle. The concept of laches is that a party is to be forgiven

his unreasonable delay, provided it has had no prejudicial

consequences. If there are such, it is irrelevant how they

occurred, or whether it was his fault. If a vital witness dies,

that is plaintiff's misfortune; if he remains fresh and available,

that is plaintiff's good fortune. The test of prejudice vel non is

24a

simple and objective, was defendant hurt as a result of the

delay?

Because of Baird’s non-filing, and the arrival of White I, all

proceedings obviously came to a halt, as a direct consequence.

Baird is not to be credited, but to be debited for this delay, to

the extent that it hurt, and defendant’s prejudice must be

measured by the entire interval.

PPLM is in the same difficulty. If a defendant’s witness had

died a week after a late suit was filed, and before it could

possibly have been trid, (or, conceivably, before his deposition

could have been ttaken, a remedy not available here), the loss

should be just as much a consequence of the late filing as if the

witness had died the week preceding. White I’s appearance

interrupted the present proceedings just as much as if it had

occurred three months earlier. The court could hardly be ex-

pected to have a hearing between June 1 and August 12;

PPLM’s counsel suggested as much in stating why he did not

request a summer hearing. Accordingly, White I’s interruption

was a direct consequence of PPLM’s late filing, and PPLM

must be charged therewith. In sum, neither plaintiff was res-

cued by White I; rather, they were further submerged.

Concededly this was hard lines. However, where their fault

was established, the only question was the practical result,

which was that the court was not presented with an opportun-

ity for a hearing until two and a half years had elapsed from the

clerk’s office’s receipt of mandate.

This conclusion may be tested by approaching from the other

direction. If application had been made promptly in the fall or

early winter, it could have been disposed of well before White

I’s arrival. Baird has suggested that possibly this might not

have occurred. However, the party at fault is not the one to

engage in speculations.

(b) The Effect of the Delay

When delaying a matter that, although separate, is collater-

al to and closely connected with, judicial proceedings that have

25a

otherwise terminated, prejudice should arise quickly. The

advantages of a continuum, and the loss from interruption,

differ from laches in the bringing of a cause of action. In White

II the Court spoke favorably of a 21 day rule, a recognition of

the desirability of promptness. This benefits everyone—

except possibly plaintiffs. The financially responsible party has

a natural interest in clearing up its docket and getting things

behind it. So has the court. While the White Court did not

speak of the court as an affected party, it manifestly is. The

question did not arise in White because the district court there

had made an award, and had indicated no objection to delay. A

court may well be affected, however, both for itself and on

behalf of the defendant.

A Massachusetts plaintiff seeking fees presently comes into

court with diarics and records and asserts a “lodestar” fiture.

Furtado v. Bishop, 1 Cir., 1980, 635 f.2d 915. Wherever may be

the burden of proof, the burden of going forward with the

second step, viz., establishing excessiveness, or countervail-

ing, or negative aspects, would normally seem to be on the

defendant. The court has been held obligated to state reasons

for a departure, a view already current in October, 1979. See

Gagne v. Maher, 2 Cir., 1979, 594 F.2d 336, 345, aff'd 448 U.S.

122, 100 S.Ct. 2570, 65 L.Ed.2d 653, and cases cited. While, in

October, 1979 the First Circuit had not yet adopted the “lode-

star” approach, plaintiffs were on notice that the court called

for very specific analysis and findings. Furtado v. Bishop, 1

Cir., 7/26/79, 604 F.2d 80, 98, cert. denied, 444 U.S. 1035, 100

S.Ct. 710, 62 L. Ed.2d 672, a case reversing the present writer

for failure to do so. Either method imposes a heavy factual

burden on someone, which can only increase with the passage

of time. :

Baird would meet this last conclusion by inquiring, with

respect to defendant’s right to be heard, whether assistant

attorneys general suffer from “amnesia.” His proferred reply

to defendant’s pointing out that there is a normal turnover in

the Attorney General’s office and that, during the delay, his

last knowledgeable assistant had, indeed, left, very possibly

26a

diminishing the interest, and perhaps availability, of departed

employees with respect to affording sufficient time for review-

ing files and refreshing recollections, is that if departures could

be recognized, “there would be massive layoffs each time a

major case was lost.” Filing his application nearly three years

after the Court’s final opinion, five years after Lucas had

performed any services, the court would not think him in a

position to adopt this style of argument. Nor is defendant’s

point ill-taken. Courts have found prejudice simply in the fact

that employees have left their empioyment. Goodman v.

McDonnell Douglas Corp., 8 Cir., 1979, 606 F.2d 800, 808

(“retired, transferred [or] quit”), cert. denied, 446 u.s. 913, 100

S.Ct. 1844, 64 L.Ed.2d 267; Boone v. Mechanical Specialties

Co., 9 Cir., 1979, 609 F.2d 956, 959 (“retirements, voluntary

and involuntary terminations”).

Baird then engages in a switch.

“Nor is the testimony of prior assistants necessarily

relevant. Their tasks as defendant-appellants for the most

part were different. It is the Court’s duty, in the long run,

to decide what work was reasonable and what fees ere

just. No overriding issue in this fee matter turns upon the

recollection of past assistant attorneys general. One does

not write a history of an event from the recollection of

those who de the scene and left their records and/or

memories behind.”

Apparently tye departed assistants are good riddance.

While the court regards a defendant's right of participation

in argument, and possibly testimony and cross-examination, as

important, it accepts Baird’s assertion that itself is perhaps the

most important factor. A judge’s qualifications to determine

appropriate and reasonable consel fees come in large measure

from his closeness to, and familiarity with, the case. While this

relates particularly to proceedings that took place before him,

it also applies to subsequent proceedings originating there-

from. At the same time, a judge, who must constantly move

from one case to another, can forget. It requires additional

effort and time to recall the past. Unnecessary taking of the

27a

court’s time is an imposition on other litigants. In this connec-

tion the Court of Appe2!s has recently held that “inconvenience

. . . tothe court [and] tc other litigants” may be a reason for not

permitting even a short reopening of a trial. Blaikie v. Calla-

han, 1 Cir., 1982, 691 F.2d 64, 67. See also, discussion and

cases cited in Affanato v. Merrill Brothers, 1 Cir., 1977, 547

F.2d 138, 140. While the court recognized in Affanato that the

outright loss of rights was a serious matter, as does this court,

it is to be recalled that the right to counsel fees is tempered by

the court’s discretion. It is a familiar principle that he who

seeks equity should do equity. Nevertheless, while the court

feels that prejudice to parties other than defendant should be

encompassed in this overall question and charged against

plaintiffs, for the purposes of its actual resolution of prejudice

vel non it will consider only prejudice to the defendant. If a

court above would also consider prejudice to the court and to

other litigants, the court feels that such would result here if

plaintiffs’ lateness were to be overlooked.

Not only can the court forget tempoerarily, it may well not

be possible to refresh its recollection completely. This dis-

ability may substantially affect the defendant. Ifthe court fails

to remember events or circumstances rebutting or diminishing

any of plaintiffs’ claims, which they assert to be prima facie

until discounted, it will be at defendant’s cost."* It seems more

than possible that testimony may have to be taken; certainly

more than generalized argument will be in order. The passage

of time may well dull the memory even of plaintiffs’ various

counsel as to why certain of their activity, or the extent there-

of, was deemed necessary. This, too, under the circumstances,

is more likely to redound to defendant’s loss than to plaintiffs’.

So far the court has been looking at the situation from the

standpoint of the defendant, and of the court in the broad

© As an important example, the court’s memory could grow dim, as it now

has, with respect to the basis of its “reservations about the adequacy of

plaintiffs’ [viz., Baird's) representation.” See Baird v. Be‘lotti, 450 F .Supp.,

at 999 n. 3.

28a

sense. It should ask itself, in turn, whether, in remedying

unfairness to defendant by denying fee claims, it is being unfair

to plaintiffs. Plaintiffs can say that in October 1979 the fee

statute was only three years old and there had been no cases

telling them they should proceed other than at their own pace."

On the other hand, there was no case telling them they could do

so. The very fact that the statute describes attorney’s fees as

costs indicates an obvious attachment to the principal cause of

action. Mos important, their equitable nature is made clear by

the fact that the fee award is discretionary. The reasons for

promptness here advanced were not dredged from recess of

imagination. Rather, as a matter of fairness, they would seem

as self-evident in 1979 as now. Evey today plaintitf's, and the

court’s, research has been unable to find cases considering the

question more favorable to them than White III.”

III Conclusion

The delay with respect to Baird is particularly serious, «ven

if it were to be assumed that White I had never been decided

and Baird’s filing date be taken, on the basis previously dis-

cussed, as the fall of 1980. A great length of time had already

‘| White | already had a predecessor invoking Rule 5%e). Hirschkop v.

Snead, E.D.Va., (8/2/79), 475 F.Supp. 59, aff'd, 646 F.2d 149.

'2 The “over four month” delay in Brown v. City of Palmetto, 11 Cir. , 1982,

681 F.2d 1325, is certainly no more favorable than White III. Bond v.

Stanton, 7 Cir.. 1980, 630 F.2d 1231, cert. denied sub nom. Blinzinger v.

Bond, 454 U.S. 1068, 102 S.Ct. 614, 70 L.Ed.2d 601, and Doulin v. White.

E.D.Ark., 1982, 549 F.Supp. 152, are distinguishable since in both

post-judgment fee settlement negotiations had occurred. This court is aware

of Judge Freedman’s decision in Brewster v. Dukakis, D.Mass., 1982, 544

F.Supp. 1069, where the court allowed 2 fee application filed two years late.

However, the court found no significant prejudice, noting that the prties had

continued a close negotiating and monitoring relationship since judgment

based on a consent decree. Since the case involved complex litigation relating

to hospital services and the award was deemed interim to continuing

junsdiction by the court over the parties for purposes of enforcement, the

cas! is distinguishable on the facts. To the extent that it is not, this court

declines to follow it.

29a

passed as to some of the services—all that were rendered by

Lucas—and delay may have a crescendo effect. Also, there

were many services, and they were diverse. On any basis,

White or no White, the court would find a strong probability of

prejudice.

PPLM’s filing was very much prompter, though even here,

for reasons previously noted, tiiere would seem little practical

difference between May 29, and a filing the following fall.

PPLM has further differences. Not only were the services

relatively more recent, but they were confined to resisting

defendant’s second appeal, viz., a motion and brief to affirm, a

principal brief, obtaining leave to argue orally, and appellate

argument, and were thus of a type simpler, and more easily

appraisable, than Baird’s totality. However, PPLM has pre-

sented the court with a serious problem. These services con-

sumed a total of 880 hours, for which is requested $65,000, plus

a 50% multiplier. This number of hours for such activity, even

for a single appellee,” is entirely foreign to the court’s experi-

ence. It would seem especially large with respect to a case that

had already been extensively briefed, and as to which, with

due modesty, there had been a considered opirion. Moreover,

PPLM was an appellee in a relatively comfortable position."

“The [Massachusett] court did not. . . read into the statute the

exceptions the Supreme Court had indicated would make a

fundamental difference and might save it from constitutional

infirmity.” Baird v. Bellotti, 450 F.Supp., at 1005. In common

parlance, the pitcher was well ahead of the batter.

Unusual scrutiny is called for in these circumstances, giving

the passage of time particular significance. Counsel's affidavit

‘3 Whether a defendant must bear full double charges when the court has

permittted intervention by a party whose interests correspond with original

plaintiffs, who remain in the case, would present a question. However, the

court does not consider that question substantially affected by delay.

“ Candor requires noting that error in one, relatively minor, aspect of our

opinion did occasion it difficulty. See Bellotti v. Baird, 443 U.S., at 644 n.24,

99 S.Ct., at 3049 n.24.

30a

makes apparent that one of the issues would be that of

unneccesary duplication within his own office, a proper inqui-

ry. See, e.g., Copeland v. Marshall, D.C. Cir., 1980, 641 F.2d

880, 891. There are 118 entries labelled “conference,” appar-

ently, mostly interoffice, and 48 for “telephone,” many, seem-

ingly, additional interoffice conferences. The affidavit lists

four individuals who spent eighty or more hours apiece. This is

in no way criticism of the quality of the product. The court

requested, and has examined, PPLM’s brief, and finds it ex-

cellent. However, it could be asked how much of it is more than

a restatement—no doubt better phrased—of our prior opin-

ions, 450 F.Supp. 998-1006; 393 F.Supp. 849-57. Perfection is

not possible, and, at some point, fairness and diminishing

returns dictate that charges be not further run up against an

opponent. That point may wel! have been passed, but, more

important, with the passage of time it will be more difficult to

determine when it did.

The court returns to the practical problems of measuring

what is a reasonable fee. Une need ony turn to the careful

examination called for by the lodestar rule as illustrated by

Furtado v. Bishop, 635 F.2d, at 920-23, to appreciate the

mounting difficulties of tardily recapturing and measuring

services represented by 200 diary entries in addition to 166 for

conferences and telephones, involving some seven attorneys.

Even if successful, having in mind that the charged party must

bear the costs, merely to require a longer hearing would con-

stitute prejudice. Furthermore, the uncertainties of success,

or even, perhaps, of knowing whether success has been fully

achieved, are part of theproblem. Even disregarding White I’s

delay, the court sees more difficulties in all respects on the

basis of PPLM’s May 29, 1980 filing than would have been the

case had the filing been the preceding fall, and feels so a fortiori

if White’s postponement is to be taken into account.

It is true, as PPLM says, that under the lodestar rule the

initial burden is upon it to show the amount of time reasonably

spent, as well as the appropriate rates. However, its sugges-

tion, “Insofar as PPLM does have difficulties in proving some

item in its fee claim—e.g., an unexplained ‘conference’—the

3la

proper remedy is to disregard the particilar time attributed to

that item, not to dismiss the entire claim,” (ital. in orig.) is

altogether too facile. This might apply to minor items, but

where its diary entries show, generally, what was done and the

time spent, a court would seem more likely to start with an

assumption of reasonableness than to disregard altogether.

The concept that delay is to the defendant’s benefit would

stand the principle of laches on its head. When the court in

White III spoke of four and a half months as “not so extreme,

given all the other circumstances . . . ase to neccessitate a

finding that the request was untimely,” clearly it was con-

templating the likelihood of prejudice to the defendant, not to

the plaintiff. The court here invisages no net benefit to the

defendant.

This was a meritorious case, requiring, altogether, much

work. The loss to plaintiffs, or their counsel," is obviously very

considerable. However, where a substantial delay has oc-

curred, questions of fairness should be resolved against the

parties that had the scle control. The court has pondered this

matter deeply, but finds there is a probability of substantial

prejudice, and concludes that the application of all plaintiffs for

attorney’s fees should be dismissed.

[5] The only question that remains is one that was not

argued, whether this advance finding can be sufficient. or

whether the court must conduct a necessarily elaborate fee

heaing, and then determine whether, in fact, there was preju-

dice. The court answers this question by saying that a party

guilty of an unexcused substantial delay should not be entitled

to impose that great burden, and in this instance the court

invokes the burden on itself and other litigants as well as that

on the defendant.

This opinion does not cover other costs and expenses, which

are left open.

‘8 All counsel have stated that their clients cannot afford to pay fees. This

cannot increase defendant's obligation. Nor, since counsel were the ones who

occasioned the delay, should it change the equities.

32a

APPENDIX C

United States Court of Appeals

For the District of Massachusetts

Civil Action No. 74-4992-A

WILLIAM BarrRD, Mary Moe,

GERALD ZUPNICK, M.D.,

PARENTS’ AID Society, INc. et al.

Plaintiffs, Appellants,

Vv.

FRANCIS X. BELLOTTI, Attorney General, et al.,

Defendants, Appellees.

JANE HUNERWADEL et al.

Defendants-Intervenors.

ORDER

February 6, 1984

The within case has been remanded to the district court for

further proceedings, and I am mindful of Local Rule &(i). Even

if a substantial saving of time would be effected by my reten-

tion, I am concerned with the appearance of justice, and would

not want to give either party cause to wonder whether my

conduct of future proceedings was influenced by the degree

that I might agree or disagree with the court’s decision. The

case is accordingly returned to the Clerk for reassignment.

ALDRICH

Senior Circuit Judge*

*Sitting by designation.

*Sitting by designation.

33a

United States District Court

For the District of Massachusetts

Civil Action No. 74-4992-A

WILLIAM BarirD, Mary Moe,

GERALD ZUPNICK, M.D..,

PARENTS’ AID Society, INc. et al.

Plaintiffs,

Vv.

FRANCIS X. BELLOTTI, Attorney General, et al.,

Defendants,

JANE HUNERWADEL et al.

Defendants-Intervenors.

MEMORANDUM AND ORDER

July 22, 1982

Because of the possible difficulties presented by the motions

to dismiss, the court does not wish anyone to feel that any

aspect has been slighted. The parties, accordingly, may pro-

ceed, with reasonable promptness, with such oral or written

discovery and further briefing, if any, that they deem desirable

on those issues, and shall notify the court that no, or no further

such, is needed.

The parties shall bear in mind that reasonable, but only

reasonable, fees in proving fees, if such be recoverable, may

also be recovered. They are urged to confer on any factual

matters and, possibly, on the question of settlement. In con-

nection witht e latter, the court suggests, entirely without

prejudice, that the 1976 Supreme Court reversal was brought

about by broad, and supported only by his official position,

representations by the Massachusetts Attorney General about

Massachusetts law and the meaning of the statute, and a re-

quest for abstention, without which the case might well have

34a

ended in 1976 and it may, accordingly, be wondered why,

having called the tune the Commonwealth should not pay the

piper.

In the meantime, defendants’ motion for leave to file memor-

andum dated July 20, 1982 is allowed, and said memorandum is

received for filing.

The court adds that is anyone wishes an oral hearing, its only

available time will be 12 o’clock, Tuesday, September 7, after

which the court will be going abroad, alternatively, 12 o’clock

Monday, October 4.

By the Court

/s! ALDRICH, SCJ