Petition for Writ of Certiorari — North Dakota Ass'n of Retarded Citizens v. Schafer

‘| ses r L&D

96 417 SEP 135199)

No. OFFICE OF THE CLERK

In The

Supreme Court of the United States

October Term, 1995

°

ASSOCIATION FOR RETARDED CITIZENS

OF NORTH DAKOTA, et al.,

Petitioner,

EDWARD T. SCHAFER, Governor of the

State of North Dakota, et al.,

Respondent.

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eighth Circuit

¢

PETITION FOR WRIT OF CERTIORARI

¢

Bruce JOHNSON

107 Roberts Street North

Fargo, ND 58102

Telephone: (701) 235-6411

Attorney for Petitioner

COCKLE LAW BRIEF PRINTING CO., (800) 225-6964

OR CALL COLLECT (402) 442-283)

QUESTION PRESENTED

The instant action, which was commenced in 1980,

focused upon the denial of rights afforded to institu-

tionalized persons with mental retardation and related

disabilities. The plaintiffs obtained broad injunctive relief

and were determined to be prevailing parties. Association

for Retarded Citizens of North Dakota v. Olson, 561 F.Supp.

473 (D.N.D. 1981), aff'd, 713 F.2d 1384 (8th Cir. 1983). The

injunction was dismissed in 1995 after the district court

found that the lawsuit had forced the defendants to

change “from an embarrassing lack of appropriate atten-

tion to its responsibilities to become a forward looking

provider of the most promising methods and mechanisms

to benefit those whom it once ignored.” Association for

Retarded Citizens of North Dakota v. Schafer, 872 F.Supp.

689, 708 (D.N.D. 1995). The district court awarded the

plaintiff class (hereinafter “ARC”) attorney fees for time

expended primarily in 1993 in connection with the final

hearings to determine whether the injunction should be

dismissed. In awarding fees, the district court held that

ARC had achieved complete success in the overall litiga-

tion, and that the time expended by plaintiffs’ counsel

was reasonable and necessary. The appellate court

vacated the fee award when it found that ARC did not

prevail in those hearings, despite the fact that ARC had

prevailed in the overall litigation. The question presented

here is: whether a post-judgment fee award is governed

by the “reasonable and necessary” standard enunciated

in Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 478 U.S. 546 (1986) or by the restrictive

ii

QUESTION PRESENTED - Continued

“success” standard enunciated in Hensley v. Eckerhart, 461

U.S. 424 (1983) as applied by the appellate court which

would require a party who has achieved complete success

in the overall litigation to separately prevail at each stage

of compliance proceedings.

TABLE OF CONTENTS

Page

RUPE OSTS WP ORMEEEEETE RE GREAL 9 ch cs ondsscsensucanecaucsie i

i ee ci saci dee k aNd eee saWibewbacteauas 1

Shick a de eh ed oa da naden chine hd edhe tc 1

STATUTES INVOLVED IN THIS CASE............. 2

NE “Gi RUNS: Mel s ob 606004 00c Caneesayer 2

REASONS FOR GRANTING THE WRIT ........... 3

t. THE EIGHTH CIRCUIT’S OPINION CONFLICTS

WITH DECISIONS FROM THE FIRST, FOURTH,

SEVENTH, TENTH AND ELEVENTH CIRCUITS

AND IS CONTRARY TO THE POLICIES

EMBODIED IN THE CIVIL RIGHTS ATTORNEY

PE Ee CUSRA RGA Gb 45.60 60K 005 SORACES KASS OCS 3

Il. THE APPELLATE COURT DECISION CON-

FLICTS WITH RELEVANT DECISIONS OF THE

SUPREME COURT OF THE UNITED STATES... 6

ee cel Ncnabnueagards 8

Ceo a eee ip App. 1

iv

TABLE OF AUTHORITIES

Page

Cases

Acosta v. Louisiana Dept. of Health & Human

engerces, GIG Lids mak: CRUE oo F000 6c he chen cekeee 4

Association for Retarded Citizens of North Dakota v.

Olson, 561 F.Supp. 473 (D.N.D. 1981), aff'd, 713

FOG T5086 CGR Cie. Koes ces rcsccckcccwcaiepaceccans i

Association for Retarded Citizens of North Dakota v.

Schafer, 872 F.Supp. 689 (D.N.D. 1995).............. 6

Association for Retarded Citizens of North Dakota v.

Schafer, 83 F.3d 1008 (8th Cir. 1996).............. 1, 6

Brewster v. Dukakis, 786 F.2d 16 (1st Cir. 1986)...... 4,5

Diaz v. Romer, 961 F.2d 1508 (10th Cir. 1992)......... 5

Duran v. Carruthers, 885 F.2d 1492 (10th Cir. 1989) ..... 5

Hensley v. Eckerhart, 461 U.S. 424 (1983)......... 3, 6, 7

Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709

fear er reer eT Fire rere Terre yr Tyee T 7

Joseph A. by Wolfe v. New Mexico Dept. of Human

Services, 28 F.3d 1056 (10th Cir. 1994)............ x

Keith v. Volpe, 833 F.2d 850 (9th Cir. 1987)............ 5

Norman v. Housing Authority of City of Montgomery,

COG TA TERS CER Oe. Teck cc insannesnasesscas 5

Pennsylvania v. Delaware Valley Citizens’ Council for

Ciean Air, 478 US. S46 (19GG). 02 won cas i ewces 4,35, 6

Plyler v. Evatt, 902 F.2d 273 (4th Cir. 1990)......... 3, 4

Stewart v. Gates, 987 F.2d 1450 (9th Cir. 1993) ........ 5

TABLE OF AUTHORITIES — Continued

Page

Turner v. Orr, 785 F.2d 1498 (11th Cir. 1986).......... 4

Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988)...... 4,5

STATUTES AND RULES

ee ee gs ek) a Serer wer ee rr error rere 2

Be Gh acs ESET RRO O ORs 6 oa 10 oc kNadehivesesb ater 2

USC 6 8 6 as: 1, 4,5

PETITION FOR WRIT OF CERTIORARI

ARC respectfully prays that a Writ of Certiorari be

issued to review the judgment and opinion of the United

States Court of Appeals for the Eighth Circuit entered in

this proceeding on May 15, 1996, in order to resolve the

conflict between the Eighth and First, Fourth, Seventh,

Tenth and Eleventh Circuit Courts of Appeals on the

important issue presented herein.

¢

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Eighth Circuit that gives rise to this petition is found

at Association for Retarded Citizens of North Dakota v.

Schafer, 83 F.3d 1008 (8th Cir. 1996). It is reprinted in App.

A hereto at page A-1. By order filed June 25, 1995, the

Eighth Circuit denied the Petition for Rehearing and Sug-

gestion for Rehearing En Banc. App. B. The two district

court decisions that gave rise to the appeal are reprinted

in App. C.

JURISDICTION

On October 4, 1993, the United States District Court

for the District of North Dakota issued a memorandum

decision awarding attorney fees and costs to the p/iintiff

class for post-judgment services under 42 U.S.C. § 1988

(1994). Judgment was entered for the fee award on Febru-

ary 7, 1995. An appeal was timely taken from the judg-

ment and the judgment was vacated by the United States

Court of Appeals for the Eighth Circuit. On June 25, 1996,

the Eighth Circuit denied the motion for rehearing filed

by ARC. Pursuant to Supreme Court Rule 13.1, this Peti-

tion has been filed within 90 days of the denial of rehear-

ing.

The jurisdiction of the Court is invoked pursuant to

28 U.S.C. § 1254(1) (1993).

STATUTES INVOLVED IN THIS CASE

The Civil Rights Attorney Fee Act, as amended, pro-

vides:

In any action or proceeding to enforce a provision of

sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this

title, title IX of Public Law 92-318 [20 U.S.C.A. § 1681 et

seq.], the Religious Freedom Restoration Act of 1993 [42

U.S.C.A. § 2000bb et seq.], title VI of the Civil Rights Act

of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of

this title,’ the court, in its discretion, may allow the

prevailing party, other than the United States, a reason-

able attorney’s fee as part of the costs.

+

STATEMENT OF THE CASE

The district court awarded $202,335.15 to ARC in

attorney fees, expert fees, and costs for the work required

during the final phase of the litigation. In so doing, the

district court made the following findings: (1) plaintiffs

! So in original.

were prevailing parties in this action; (2) plaintiffs had

achieved complete success; (3) plaintiffs’ counsel was

ethically obligated to represent the interests of class

members during the proceedings; (4) the hours expended

by counsel were reasonable and necessary; and (5) the

costs expended were necessary and properly compens-

able.

The Eighth Circuit reversed the district court deci-

sion and vacated the entire award, holding that the pre-

vailing party analysis of Hensley v. Eckerhart, 461 U.S. 424

(1983) applied to post-judgment proceedings, and that

because ARC had not separately succeeded during the

final compliance hearings, ARC was not entitled to a fee

award for work performed, even though ARC had

achieved complete success in the overall litigation.

Plaintiffs’ Petition for Rehearing was denied on June

25, 19!'6.

REASONS FOR GRANTING THE WRIT

: I. THE EIGHTH CIRCUIT’S OPINION CONFLICTS

WITH DECISIONS FROM THE FIRST, FOURTH,

SEVENTH, TENTH AND ELEVENTH CIRCUITS

AND IS CONTRARY TO THE POLICIES EMBOD-

IED IN THE CIVIL RIGHTS ATTORNEY FEE ACT.

The decision below is in direct conflict with the fol-

lowing decisions holding that post-judgment activities by

a prevailing party are compensable if reasonable and

necessary, even when those activities are not successful:

Joseph A. by Wolfe v. New Mexico Dept. of Human Services,

28 F.3d 1056 (10th Cir. 1994); Plyler v. Evatt, 902 F.2d 273

|

(4th Cir. 1990); Ustrak v. Fairman, 851 F.2d 983 (7th Cir.

1988); Brewster v. Dukakis, 786 F.2d 16 (ist Cir. 1986)

(refusing to adopt “but for” success standard); Turner v.

Orr, 785 F.2d 1498 (11th Cir. 1986). Certiorari is appropri-

ate here. See also, Acosta v. Louisiana Dept. of Health &

Human Resources, 478 U.S. 251, 253 (1986) (Court granted

petition to resolve conflicting interpretations of rule).

Courts have generally recognized that the degree of

success is not a singularly dispositive factor in cases

involving post-judgment activities where the plaintiff has

previously prevailed. The seminal case on post-judgment

fees is Pennsylvania v. Delaware Valley Citizens’ Council for

Clean Air, 478 U.S. 546 (1986), which held that a prevail-

ing party was entitled to fees so long as the work was

found to be “useful and necessary.” Id. at 550-53. Signifi-

cantly, in Delaware Valley the plaintiffs became involved in

state court litigation in order to protect a federal decree.

Pennsylvania v. Delaware Valley Citizens’ Council for Clean

Air, 478 U.S. at 553, n. 1. The plaintiffs lost the state court

litigation and were awarded fees because, even though

the state court effort was unsuccessful, the plaintiffs had

prevailed in the federal action and the unsuccessful state

court effort was found to be useful and necessary. Id. at

561.

The Delaware Valley standard is consistent with the

purpose of 42 U.S.C. § 1988 because it recognizes the

critical role played by counsel in post-judgment proceed-

ings. As stated in Plyler v. Evatt, 902 F.2d 273, 280 (4th Cir.

1990):

Plaintiff class had no option but to incur the

related costs; plaintiffs’ counsel were under

clear obligation to make the defensive effort. See

Ustrak v. Fairman, 851 F.2d 983, 990 (7th Cir.

1988) (civil rights plaintiff was entitled to fees in

connection with largely unsuccessful appellate

defense because “he had no choice but to incur

them or forfeit his victory in district court”). To

deny attorney fees for such an effort, whether

successful in detail or not, would obviously

thwart the underlying purpose of the attorney

fee provision of 42 U.S.C. § 1988.

The “reasonable and necessary” standard for post-

decree fee awards was followed before Delaware Valley.

See Pennsylvania v. Delaware Valley Citizens’ Council, 478

U.S. 560, 566 (1986) (citing cases). The standard has been

consistently followed since Delaware Valley as well. See

Joseph A. by Wolfe v. New Mexico Dept. of Human Services 28

F.3d 1056 (10th Cir. 1994); Stewart v. Gates, 987 F.2d 1450

(9th Cir. 1993); Diaz v. Romer, 961 F.2d 1508 (10th Cir.

1992); Duran v. Carruthers, 885 F.2d 1492 (10th Cir. 1989);

Ustrak v. Fairman, 851 F.2d 983 (7th Cir. 1988); Norman v.

Housing Authority of City of Montgomery, 836 F.2d 1292

(11th Cir. 1988); Keith v. Volpe, 833 F.2d 850 (9th Cir. 1987).

By requiring a party to succeed at each stage of

implementing injunctive relief in order to be entitled to

any additional fee, the appellate court creates the pros-

pect of protracted litigation over the degree of post-

judgment success achieved by a party who has previously

attained prevailing party status. The mere prospect of

such a multitude of trials left one court “traumatized.”

Brewster v. Dukakis, 786 F.2d 16, 18 (1st Cir. 1986).

Delaware Valley provides the better reasoned

approach. Once a party has prevailed, a party must be

able to fully test claims of compliance through efforts

which are reasonable and necessary, consistent with the

role of the adversarial system. If a prevailing party may

only be compensated for compliance efforts which are

ultimately successful, civil rights plaintiffs will be denied

equal and effective representation during the compliance

phase because all claims will be abandoned except those

which are guaranteed to be fully successful.

Il. THE APPELLATE COURT DECISION CONFLICTS

WITH RELEVANT DECISIONS OF THE SUPREME

COURT OF THE UNITED STATES.

The appellate court decision here conflicts with Penn-

sylvania v. Delaware Valley Citizens’ Council for Clean Air,

478 U.S. 546 (1986) which found that post-decree activ-

ities are compensable, even if unsuccessful, where the

activities are useful and necessary. Here, the district court

specifically found the services to be reasonable and nec-

essary. The appellate court decision does precisely what

the Supreme Court refused to do in Delaware Valley, it

vacates a fee award to a party who had prevailed in the

overall litigation merely because the post-decree activity

was not ultimately successful.

Additionally, the appellate court decision conflicts

with Hensley v. Eckerhart, 461 U.S. 424 (1983). Here, the

district found that ARC had achieved “complete success.”

Association for Retarded Citizens of North Dakota v. Schafer,

872 F.Supp. 689, 715 (D.N.D. 1995). The appellate court

did not disagree with this finding but nonetheless

vacated the fee award because ARC did not prevail at the

final hearings. Association for Retarded Citizens of North

Dakota v. Schafer, 83 F.3d 1008, 1011 (8th Cir. 1996). Under

Hensley, “complete success” in the overall litigation

would require a fully compensatory fee. Hensley v.

Eckerhart, 461 U.S. at 435, 440.

Hensley also holds that the award of any attorney fee

to a prevailing party is the function of the district court,

and that appellate review is limited. Hensley v. Eckerhart,

461 U.S. at 437. The appellate court exceeded the proper

scope of review by disregarding the district court's fac-

tual finding that the services performed were reasonable,

necessary and ethically required, and instead substituted

a separate factual finding that the services were not nec-

essary because only a limited effort was required. See also,

Icicle Seafoods, Inc. v. Worthington, 475 U.S. 709 (1986)

(appellate court may not create factual finding). Consis-

tent with this excess, the appellate court refused to

remand the case to the district court for the determination

of a reasonable fee, but instead invaded the province of

the district court by making the determination itself.

In cases involving injunctive relief, the injunction

will eventually be complied with and the injunction must

be dismissed. If the appellate decision stands here, a

prevailing party who has been denied civil rights must

suffer further damage by absorbing the attorney fees

incurred when the claims of full compliance are properly

tested through the adversarial process. Prevailing parties

would effectively be forced to raise only a “limited”

defense to an adversary’s claim of full compliance due to

the risk of nonpayment. The Civil Rights Attorney Fee

Act does not condone any less than competent represen-

tation for disabled class members simply because fees are

to be paid by the parties who were previously found to

have deprived class members of their civil rights.

S

CONCLUSION

For the foregoing reasons, the Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

BRUCE JOHNSON

107 Roberts Street North

Fargo, ND 58102

Telephone: (701) 235-6411

Attorneys for Petitioners

App. 1

APPENDIX A

ASSOCIATION FOR RETARDED CITIZENS OF

NORTH DAKOTA; Lindley Black, by his father,

Sidney Black; Bradley Cossett, by his mother, Denise

Cossett; Richard Schneiderhan, by his mother, Elmira

Schneiderhan; Naomi Jordison, by her father,

Timothy Jordison; Kelli Moriarty, by her mother,

Jacquelyn Moriarty; Phillip Dechant, by his mother,

Lois Dechant, on behalf of themselves and all others

similarly situated, Plaintiffs - Appellees,

V.

Edward T. SCHAFER, Governor of the State of North

Dakota; Charles Mertens; Wanda Kratochvil; Dr. Jon

Rice; Sam Ismir; Sandi Noble; Reuben Guenthner;

Wayne Sanstead; Gary Gronberg; Henry Wessman;

Gene Hysjulien; Yvonne Smith,

Defendants — Appellants.

No. 95-1496.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 16, 1995.

Decided May 15, 1996.

Sara Beth Gullickson, Fargo, ND, argued, for appellants.

Michael James Williams, Fargo, ND, argued, for appel-

lees.

Before McMILLIAN, LOKEN, and MORRIS SHEPPARD

ARNOLD, Circuit Judges.

LOKEN, Circuit Judge.

This is a class action challenging the State of North

Dakota’s programs and facilities for the mentally

App. 2

retarded. The district court issued a broad permanent

injunction in 1982, and we affirmed. Association for

Retarded Citizens v. Olson, 561 F.Supp. 473 (D.N.D.1982),

aff'd, 713 F.2d 1384 (8th Cir.1983). However, in 1991 we

held that the Eleventh Amendment as construed in Penn-

hurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 104

S.Ct. 900, 79 L.Ed.2d 67 (1984), precludes those portions

of the injunction that enforced state law, and we

remanded for consideration of whether the State now

complies with federal law. Association for Retarded Citi-

zens v. Sinner, 942 F.2d 1235 (8th Cir.1991). In remanding,

we noted:

[T]he State argue[s] that Pennhurst requires this

action be terminated because the State is now in

compliance with all federal constitutional and

statutory requirements. In support of its posi-

tion, the State has offered affidavit evidence

. that all systemic constitutional violations

that may have existed at the start of this litiga-

tion have been eliminated. Although appellees

have contested some of these assertions, our

review of the record suggests that the State has

presented a prima facie case of current compli-

ance, particularly under the changed legal envi-

ronment of Youngberg [v. Romeo, 457 U.S. 307,

102 S.Ct. 2452, 73 L.Ed.2d 28 (1982),] and Penn-

hurst.

942 F.2d at 1240.

On remand, after broadly defining plaintiffs’ rights

under federal law, the district court appointed a Panel of

Special Masters “to receive and evaluate such evidence as

the parties present” and to file a report with the court

concerning the State’s motion to terminate the injunction.

App. 3

After nine months of hearings, the Panel recommended

that the injunction be terminated and the case dismissed.

The district court adopted the Panel’s Report in its

entirety and directed entry of judgment dissolving all

outstanding injunctive orders. However, the court also

awarded plaintiffs substantial costs, attorney’s fees, and

expert fees for their work in opposing the State’s motion

to terminate the injunction. The State appeals, contesting

$202,335.15 of the amount awarded. Concluding that the

contested services were not reasonably expended by the

prevailing party, as required by Hensley v. Eckerhart, 461

U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983), we reverse.

I.

In federal civil rights litigation, “the court, in its

discretion, may allow the prevailing party, other than the

United States, a reasonable attorney’s fee as part of the

costs.” 42 U.S.C. § 1988(b). There can be no doubt that

plaintiffs initially prevailed in this lawsuit. See ARC v.

Olson, 713 F.2d at 1395-96, reducing the initial attorney's

fee award. The State paid substantial fee awards for the

period 1980 through 1992. At issue here are fee requests

for 1993-1994, a period following the district court's

appointment of the Special Masters Panel. The State has

paid $113,835.65 of the amounts requested without objec-

tion. It appeals the award of additional claims for

$124,405 in attorney’s fees and $77,931.15 in costs and

expert fees.

The district court granted these requests in full, con-

cluding (i) plaintiffs are still prevailing parties; (ii) the

requested attorney’s fees are “the product of reasonable

App. 4

hours times a reasonable rate” and “there is no need to

adjust the fee”; and (iii) an award of expert fees is

expressly authorized by § 1988(c), first enacted in 1991.

On appeal, the State argues that plaintiffs are not “pre-

vailing parties” for purposes of this award, and also that

the amount of fees awarded is unreasonable.! We review

an award under fee-shifting statutes for “an abuse of

discretion or an error in implementing the governing

legal standards.” McDonald v. Armontrout, 860 F.2d 1456,

1458 (8th Cir.1988).

II.

Complex civil rights cases seldom end with the grant

of a permanent injunction. The injunction must be imple-

mented, that process must be monitored, and lingering or

new disputes over interpretation of the decree must often

be presented to the court for resolution. These functions

take time and effort by the prevailing party’s attorney.

Therefore, it is generally accepted that prevailing plain-

tiffs are entitled to post-judgment fee awards for legal

services necessary for reasonable monitoring of the

decree. See Stewart v. Gates, 987 F.2d 1450, 1452 (9th

1 The State also raises other issues: that § 1988(c) does not

authorize an expert fee award because plaintiffs did not assert

or prove claims under 42 U.S.C. § 1981 or § 1981a; that the

expert fee award is not authorized under other statutes invoked

by plaintiffs, 20 U.S.C. § 1415(e)(4)(B), the Americans with

Disabilities Act, 42 U.S.C. §§ 12101 et seq., and 29 U.S.C. § 794;

and that the district court retroactively applied § 1988(c),

violating Landgraf v. USI Film Prods., __ U.S. __, 114 S.Ct.

1483, 128 L.Ed.2d 229 (1994). Given our view of the case, we

need not take up these important issues.

App. 5

Cir.1993); Garrity v. Sununu, 752 F.2d 727, 738 (ist

Cir.1984).2

However, not all post-judgment efforts are compens-

able. First, when “claims distinctly different from the

underlying lawsuit” arise after resolution of the main

civil rights issues, plaintiffs must prevail on these unre-

lated claims to be entitled to a fee award for the post-

judgment work. Willie M. v. Hunt, 732 F.2d 383, 386 (4th

Cir.1984). Second, compensable post-judgment work must

in any event be reasonable and necessary, measured by

the Hensley v. Eckerhart standard that requires balancing

the amount of effort against plaintiffs’ overall success.

Like the Tenth Circuit, we reject the notion that fee

awards “in a post-decree monitoring setting . . . are

immune from the possibility of reduction under the prin-

ciples of Hensley.” Joseph A. v. New Mex. Dept. of

Human Servs., 28 F.3d 1056, 1060 (10th Cir.1994).

The district court failed to conduct this analysis.

True, the court applied the familiar “lodestar” approach

and found that the number of hours and the hourly rate

submitted by plaintiffs’ counsel were reasonable. But the

court awarded the full amount requested without analyz-

ing whether plaintiffs’ efforts in 1993 and 1994 were

reasonable in light of their level of success. See Hensley,

461 U.S. at 438-40, 103 S.Ct. at 1942-43. Partial success

may justify only a partial fee award. See Farrar v. Hobby,

506 U.S. 103, 112-16, 113 S.Ct. 566, 574-75, 121 L.Ed.2d 494

2 The Supreme Court noted this principle in Pennsylvania

v. Delaware Valley Citizens’ Council, 478 U.S. 546, 559, 106 S.Ct.

3088, 3095, 92 L.Ed.2d 439 (1986).

App. 6

(1992); Craik v. Minnesota State Univ. Bd., 738 F.2d 348,

349-50 (8th Cir.1984).

Il.

We remanded this case in 1991 because some of the

relief initially afforded plaintiffs violated the Eleventh

Amendment, and because the State had made a prima

facie showing that the permanent injunction should now

be terminated. On remand, the district court appointed a

Panel of Special Masters to consider the State’s motion to

terminate. This procedure certainly called for reasonable

post-judgment monitoring. Plaintiffs could not simply

walk away from the Panel’s inquiry; the district court

expected them to participate. Thus, as in Plyler v. Evatt,

902 F.2d 273, 281 (4th Cir.1990), “plaintiffs’ counsel were

under clear obligation to make the defensive effort,” and

in such situations, even largely unsuccessful defensive

efforts may be compensable. See also Hatfield v. Hayes,

877 F.2d 717, 720 (8th Cir.1989).

However, it was up to plaintiffs to define the extent

of their participation. Plaintiffs had every reason to know,

before the Panel hearings began, the nature of the State’s

compliance efforts. Plaintiffs could have acknowledged

that those efforts appeared to provide full relief and

engaged in relatively passive monitoring of the State’s

compliance evidence to the Panel. Instead, plaintiffs

fought the State at every turn, presenting their own slate

of opposing experts and examples of alleged class mem-

ber deprivations. Given the parameters established by

our remand order, this was, in substance, the assertion of

App. 7

new claims for relief. Those new claims were unsuccess-

ful.

The Panel received evidence from November 1992 to

August 1993. Forty-four witnesses testified, including

eleven outside experts. The Panel issued its Report on

November 14, 1994. In recommending that the permanent

injunction be terminated and the case dismissed, the

Panel concluded:

In the space of twelve hard years, North Dakota

has moved from an embarrassing lack of appro-

priate attention to its responsibilities to become

a forward-looking provider of the most promis-

ing metinods and mechanisms to benefit those

whom it once ignored. To deny that recognition

is to ignore volumes of fact and countless days,

months, and years of work, not to mention

expense.

* * *

The panel has, in its review of the record, stud-

ied plaintiffs’ assertions of federal rights viola-

tions. The panel has found that the examples

presented appear to be relatively isolated,

unconnected incidents involving oversight,

common errors in judgment, and service incon-

sistencies between regions. No willful or know-

ing acts of abuse, neglect, or deprivation of

rights of class members have been left unad-

dressed. The State has demonstrated that its

system for delivering services to persons with

developmental disability no longer has inherent

within it violations of the federal constitutional

and legal rights of those so disabled.

App. 8

This was a complete rejection of plaintiffs’ position.

Plaintiffs had asserted that the State was not in compli-

ance with federal law. The Panel disagreed, in essence

concluding that plaintiffs had received all the relief to

which they were entitled in the lawsuit by the time of our

1991 remand. Thus, the relative success factor in the

Hensley equation suggests that plaintiffs’ fee award must

be reduced to an amount that would compensate for the

limited effort required to engage in relatively passive

monitoring of the Panel proceedings. A prevailing party

who aggressively seeks a greater victory and fails is

entitled to a proportionally lesser fee award than a pre-

vailing party who merely defends its victory, even if the

defense is less than completely successful. See Ustrak v.

Fairman, 851 F.2d 983, 990 (7th Cir.1988).

We must also consider the other key component of

the Hensley equation — exclusion of “hours that are exces-

sive, redundant, or otherwise unnecessary,” 461 U.S. at

434, 103 S.Ct. at 1939-40. The State on appeal has identi-

fied numerous examples of seemingly excessive and

unnecessary work, such as the time spent by attorneys

with billing rates in excess of $100 per hour accompany-

ing experts on facility tours for days on end. Cf. Halder-

man v. Pennhurst State Sch. & Hosp., 49 F.3d 939, 942 (3d

Cir.1995). The nature of the Panel proceedings was

described in a section of the Panel’s fifty-five page final

Report entitled “The trouble with experts”:

Each side’s counsel [supported] the proposition

that its eXpert was the correct assessor for var-

ious reasons: the other’s notes were incomplete,

visit too brief, methodology flawed, experience

less, education less prestigious, or preparation

App. 9

for the site visit insufficiently detailed or insuffi-

cient in scope. Endless reasons were offered for

discrediting the observations of an expert wit-

ness from a site visit: reviewing the Individu-

alized Education Plans of all students in the unit

first, as opposed to afterward or not at all; or

talking, or not talking, to direct care staff; talk-

ing, or not talking, to classroom teachers, or

special education directors, or parents, or team

members, or assessors, or evaluators, or case

managers, or the Qualified Mental Retardation

Professional; or not looking at the actual habili-

tation plans of everyone at the site visited, or at

the particular plan of a client interviewed there;

or not interviewing any client there; or not

reviewing all, or specific, work plans or training

programs for clients at a day work activity; or

not comparing a client’s plans through time to

note progress or lack thereof and whether the

plan adjusts according to the circumstances; or

not tracking quarterly utilization reviews of ser-

vice plans.

Perhaps all this effort would have been compensable

had plaintiffs persuaded the Panel or the district court

that the State continues to violate federal law. But it was

overkill in light of the State’s persuasive evidence that

the time had come to end the litigation. This necessitates

a reduced fee award, because in compensating post-judg-

ment monitoring, we must avoid creating a framework in

which “the decree institutionalizes the attorney, as well

as the system.” Brewster v. Dukakis, 786 F.2d 16, 18 (1st

Cir.1986).

We therefore conclude that the district court’s fee

award cannot stand. Normally, when a fee award must be

App. 10

reduced, we remand for calculation of an appropriate fee,

as the Supreme Court did in Hensley. But there is no need

for that in this case. Plaintiffs have been paid for all their

post-judgment monitoring in 1992, when the Panel was

appointed and began its hearings, plus an additional

$113,000 for services in 1993 and 1994. Even if plaintiffs

are entitled to a reasonable expert fee,> we conclude that

they have been fully compensated for their reasonable

and necessary post-judgment efforts following our 1991

remand.

For the foregoing reasons, that portion of the district

court’s judgment awarding plaintiffs attorney's fees,

expert fees, and costs in the amount of $202,335.15 is

reversed.

3 The district court did not discuss and plaintiffs have

made no attempt to explain why their experts were necessary

for reasonable post-judgment monitoring.

App. 11

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 95-1496NDBI

Association for Retarded :

Citizens, et al. * Order Denying

* Petition for Rehearing

| i tea * and Suggestion for

v. * Rehearing En Banc

Edward T. Schafer, et al. ,

Appellants. *

The suggestion for rehearing en banc is denied. The

petition for rehearing by the panel is also denied.

June 25, 1996

Order Entered at the Direction of the Court:

/s/ Michael E. Gans

Clerk, U.S. Court of Appeals, Eighth Circuit

Pe .

App. 12

UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

SOUTHWESTERN DIVISION

Association for Retarded

Citizens of North Dakota, et al.,

Plaintiffs,

v. Civil No. A1-80-141

Edward T. Schafer, et al.,

Defendants.

MEMORANDUM AND ORDER

(Filed Oct. 4, 1993)

Plaintiffs submitted a request for payment of certain

fees and expenses incurred in each of the first two quar-

ters of 1993. Defendants have refused to pay some of the

billings, and have objected to the amount claimed as to

others. Plaintiffs have moved the court for an order

directing defendants to pay the disputed fees and costs.

In all, defendants have refused to pay $37,034 of plain-

tiffs’ requested fees and $29,566 of plaintiffs’ requested

costs. Defendants have countered plaintiffs’ motion with

a motion of their own which asks the court to order a

termination of defendants’ duty to pay plaintiffs’ legal

fees and costs.

Defendants argue that this court abrogated the

implementation order in 1990 and that there is nothing

left to monitor, and thus plaintiff is not entitled to any

fees or costs. To suggest that the abrogation of the imple-

mentation order in this case has removed all standards

from the level of care due class members is erroneous.

App. 13

The court has ordered the impaneling of a carefully

selected and uniquely qualified Special Masters Panel to

determine if the Department of Human Services is meet-

ing the mandates of the applicable law; and has ordered

the parties to present their evidence to that independent

and objective panel, which must then make recommenda-

tions to the court. The recommendations must reflect its

background of expertise in the needs of the class mem-

bers and the resources available to meet those needs.

Counsel for plaintiffs have no choice; they must do the

work. The case is still open, and counsel for the plaintiffs

owe a duty to their clients to see that their rights are

protected, and to present plaintiffs’ concerns to the panel.

Defendants further suggest that plaintiffs are not

“prevailing parties” under the statute allowing the pay-

ment of attorneys’ fees. (42 U.S.C. § 1988). This issue has

been decided adversely to defendants several times.

Plaintiffs prevailed at the trial; the case is now in admin-

istration of the order entered after trial; and, plaintiffs are

found to be prevailing parties and entitled to reasonable

fees. Defendants could have settled this case early in its

history on terms more favorable to them than the even-

tual court order. Instead, a conscious choice was made to

litigate and defendants should not now be heard to com-

plain about the results of that decision.

The mandate of the statutes is to award “reasonable”

fees and costs. 20 U.S.C. § 1415(e)(4)(B); 42 U.S.C. § 1988.

A court should award attorneys’ fees for all hours

expended unless the time was unreasonably expended,

duplicative, or manufactured. Association for Retarded Citi-

zens v. Olson, 713 F.2d 1384 (8th Cir. 1983) (citing Hensley

v. Eckert, 461 U.S. 424 (1983)).

i.

App. 14

The defendants’ refusal to pay the full amount billed

raises four issues. They are:

1. Was the time expended by plaintiffs’ counsel

in accompanying expert witnesses in their tour

of facilities reasonable necessary trial prepara-

tion?

2. Is plaintiffs’ counsel entitled to full compen-

sation for travel time?

3. Is plaintiffs’ counsel entitled to payment by

defendants for time spent on legislative mat- -

ters?

4. Are plaintiffs entitled to recover the

amounts spent for expert witnesses?

1. Touring Time.

Defendants have stated that the time spent touring

with expert witnesses is “inappropriate and non-produc-

tive time for purposes of the litigation, and, therefore,

should be non-compensable.” Plaintiffs’ counsel claims

that such activity was regarded as compensable time in

prior costs awards (Association for Retarded Citizens v.

Olson, 561 F.Supp. 495 (D.ND 1982)); that defense counsel

accompanied some of the defense experts on these tours;

and that the touring time allowed counsel to interview

class members and discuss relevant matters with each

expert. The court does not believe that it would neces-

sarily be malpractice to fail to accompany the experts in

their field visits, nor does the court believe it is neces-

sarily frivolous. Such items as this must be left to the

good judgment of counsel. Therefore, the court holds that

plaintiffs should be paid for this time.

App. 15

2. Rate for Travel Time.

Defendants argue that if plaintiffs’ counsel are to be

paid at all for travel time they should be restricted to a

rate that is one-half that charged for legal work. The cases

cited in support of that position, McDonald v. Armontrout,

860 F.2d 1456 (8th Cir. 1988) and Craik v. Minnesota State

University Bd., 738 F.2d 348 (8th Cir. 1984), are authority

only for the proposition that the appellate court will give

the district court wide latitude in determining this ques-

tion. However, Craik cites with approval to a 7th Circuit

case, Henry v. Webermeier, 738 F.2d 188 (7th Cir. 1984) and

quotes from Judge Posner’s opinion as follows: “When a

lawyer travels for one client he incurs an opportunity

cost that is equal to the fee he would have charged that or

another client if he had not been traveling.” The Weber-

meier court went on to approve an order allowing full fees

for traveling. This court is in agreement with that posi-

tion. If counsel were in the office he or she would be

billing someone, so they are entitled to recover the

“opportunity cost” incurred.

3. Billings for Legislative Matters.

Defendants object to the amounts billed for work on

legislative matters, claiming that such work is not

involved in this action. Plaintiffs respond with the argu-

ment that it is proper for their counsel to monitor pro-

posed legislation to insure that it is in compliance with

the rights of their clients. Plaintiffs further claim thet

most of the billings that involved legislative matters also

involved other legal work on the case and occurred on

the same billing because all this work was done on a

App. 16

single trip to Bismarck. The total of the fees in this

category amount to $3,487.

The court agrees with defendants that plaintiffs’

interest in legislation is not a part of this action and the

defendants should not have to pay for plaintiffs’ lobbying

efforts. The problem appears to be that plaintiffs’ counsel

have, at least in some instances, lumped the charges for

legislative work with time spent on matters to this action.

Defendants have denied payment for all of this time. To

receive the compensation due them for the work done in

furtherance of this action, counsel for plaintiffs must redo

the billing, specifically setting out the time spent on

lobbying efforts together with a commensurate percent-

age of the travel time, and leave those items out of the

billing.

4. Expert Witness Costs.

The matter of the request to have defendants pay the

full cost of plaintiffs’ experts is a more difficult question

to resolve. These costs cannot be assessed under the

general cost statute, 28 U.S.C. § 1920. Crawford Fitting Co.

v. J. T. Gibbons, Inc., 482 U.S. 437 (1987). Neither can they

be assessed as a part of the attorneys’ fees awarded to a

prevailing party. West Virginia University Hospitals v.

Casey, 499 U.S. 83 (1991). Therefore, unless there exists

other authority for awarding such fees plaintiffs should

be restricted to collecting the statutory witness fees for

each expert and only for the days spent testifying and

reasonable travel time to and from the court. See Casey,

supra.

ieee tiaiaeitaaiaieiaiinsiitiaiinaiiiniitiaisiineaiaa iia iiiiliialiaaeiateeel

App. 17

Justice Scalia, writing for the majority in Casey,

remarked in a footnote that there is such authority under

the Handicapped Children’s Protection Act of 1986. 20

U.S.C. § 1415(e)(4)(B). Justice Scalia reviewed the joint

committee report on that act, 1986 U.S. Code and Admin-

istrative News 1798, 1808, and pointed to the statement of

the joint committee on that bill which said:

The conferees intend that the term “attorneys’

fees as part of the costs include reasonable

expenses and fees of expert witnesses and the -

reasonable costs of any test or evaluation which

is found to be necessary for the preparation of

the parent or guardian’s case in the action or

proceeding, as well as traditional costs incurred

in the course of litigating a case.

Justice Scalia then went on to remark that “The statement

is an apparent effort to depart from ordinary meaning and

to define a term of art.

Casey at 1143, ftnte 5.

Therefore, this court has the obligation to award plaintiffs

the expert witnesses fees and, pursuant to its authority,

does so.

Accordingly, IT IS ORDERED THAT:

1. PLAINTIFFS’ MOTION FOR ATTORNEY

FEES AND COSTS (Doc #822) IS GRANTED ON

THE CONDITION THAT PLAINTIFFS REVISE

THE FEE APPLICATION AND DELETE

THEREFROM ALL TIME SPENT ON LEGISLA-

TIVE MATTERS.

2. DEFENDANTS’ MOTION TO TERMINATE

DEFENDANTS’ DUTY TO PAY PLAINTIFFS’

eee eT

App. 18

ATTORNEY FEES AND COSTS (Doc #823) IS

DENIED.

Signed at Washington, DC this 30 day of September, 1993.

/s/ Bruce M. Van Sickle

Bruce M. Van Sickle, Judge

United States District Court

ao mast

Dire cp mint wie

App. 19

APPENDIX C

UNITED STATES DISTRICT COURT

DISTRICT OF NORTH DAKOTA

SOUTHWESTERN DIVISION

Association for Retarded Citizens of North

Dakota; Lindley Black by his father, Sidney

Black; Bradley Cossett, by his mother, Denise

Cossett; Richard Schneiderhan, by his mother

and guardian. Elmira Schneiderhan; Naomi

Jordison; Timothy Jordison; Kelli Moriarty, by

her mother and guardian, Jacquelyun Mor-

iarty; Phillip Dechant, by his mother and

guardian, Lois Dechant, on behalf of them-

selves and all others similarly situated,

Plaintiffs,

vs.

Edward T. Schafer, Governor of the State of

North Dakota; Rod Backman, Facilities Man-

agement; Wanda Krotochzil, Superintendent

of the Developmental Center at Grafton; Dr.

John Rice, State Health Officer, Department of

Health; Sam Ismir, Director Division of Mental

Health, Department of Human Services; Sandi

Noble, Director, Division of Developmental

Disabilities, Department of Human Services;

Reuben Guenthner, Director, Department of

Vocational Education; Wayne Sanstead, Super-

intendent of Public Instruction; Gary Gron-

berg, Director of Special Education Division,

Department of Public Instruction; Henry

Wessman, Director, Department of Human

Services; Gene Hysjulien, Director, Division of

Vocational Rehabilitation, Department of

Human Services; Lori Wightman; Director,

Office of Program and Policy Development,

Department of Human Services,

Defendants.

A1-80-141

App. 20

MEMORANDUM AND ORDER

(Filed Feb. 7, 1995)

On January 11, 1995, this Court entered an Order

(Doc. # 859) dismissing the Panel of Special Masters,

terminating the permanent injunction. and requiring the

Plaintiffs to file, within fifteen days of the Order, their

outstanding attorney fees, and separately, their outstand-

ing statutory costs. Further, Defendants were required,

within fifteen days of the filing of Plaintiffs outstanding

attorney fees and costs, to present their objections. Plain-

tiffs filed their motion for attorney’s fees and costs on

January 19, 1995 (Doc. # 860) and Defendants filed their

response on January 20, 1995 (Doc. # 861).

A. Attorney Fees

The Plaintiffs filed suit in Federal District Court

under 42 U.S.C. § 1983 based on various civil rights

i

violations. Attorney’s fees may be awarded pursuant to

42 U.S.C. § 1988(b) which states in relevant part:

In any action or proceeding to enforce a provi-

sion of sections 1981, 198la, 1982, 1983, 1985,

and 1986 of this title . . . the court, in its discre-

tion, may allow the Prevailing party, other than

the United States, a reasonable attorney’s fee as

part of the costs.

Plaintiffs are the prevailing parties in this action, See

Order dated January 11, 1995 (Doc. # 859), and are,

therefore, entitled to an award for attorney’s fees.

The next inquiry is the proper manner in which to

determine a reasonable attorney’s fee. “The most useful

10k) Sa ae a lea

NE SONDRA 2a =

App. 21

starting point for determining the amount of a reasonable

fee is the number of hours reasonably expended on the

litigation multiplied by a reasonable hourly rate. This

calculation provides an objective basis on which to make

an initial estimate of the value of a lawyer’s services.”

Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). This is

commonly known as the Lindy lodestar approach. See

Lindy Bros. Builders, Inc. of Philadelphia v. American Radia-

tor & Standard Sanitary Corp., 487 F.2d 161 (3th Cir. 1973).

Plaintiffs’ counsel has provided detailed billing state-

ments establishing attorney’s fees in the amount of

$124,405. This includes $35,733.00 awarded in this Court’s

Order of June 7, 1994, in addition to $88,672.00 for the

billing periods of the last two quarters of 1993, and all

four quarters of 1994. After consideration of these billing

statements, the Court finds that the number of hours

expended and the rate applied are reasonable which justi-

fies a loadstar figure of $124,405.

However, the product of reasonable hours times a

reasonable rate does not end the inquiry. Hensley at 434.

Courts may consider other considerations identified in

Johnson v. Georgia Highway Express, Inc., 488 F.2d 714,

717-719 (5th Cir. 1974), commonly known as the Johnson

factors. Such factors may lead the Court to adjust the fee

upward or downward. Hensley at 434. After careful con-

sideration of the Johnson factors and recognizing that the

resulting product of the Lindy loadstar approach “is pre-

sumed to be the reasonable fee” (See Blum v. Stenson, 465

U.S. 886, 897 (1984)) there is no need to adjust the fee.

App. 22

B. Expert Fees

Plaintiffs seek an award for expert fees in the amount

of $57,908.04 ($29,566 from June 7, 1994 Order and

$28,342.04 expended from the third quarter of 1993 to

present date). Expert fees may be awarded pursuant to 42

U.S.C. § 1988(c) which provides:

In awarding an attorney’s fee under subsection

(b) of this section in any action or proceeding to

enforce a provision of section 1981 or 1981a of

this title, the court, in its discretion, may include

expert fees as part of the attorney’s fee.

Defendants are correct to point out that West Virginia

Univ. Hosp. v. Casey, 499 U.S. 83 (1991), held that fees for

services rendered by experts in civil rights litigation may

not be shifted to the losing party as Part of a reasonable

attorney’s fee under 42 U.S.C. § 1988. However, Casey was

decided prior to the Civil Rights Act of 1991, where

Congress amended 42 U.S.C. § 1988 to expressly provide

for expert fees by adding the language of subsection (c)

expressed above. See Houghton v. Sipco, Inc., 631 F.Supp.

631, 650 n. 16 (S.D.lowa 1993). Thus, Plaintiffs are entitled

to an award for expert fees pursuant to 42 U.S.C.

§ 1988(c) despite the ruling in Casey.

C. Costs

Plaintiffs seek an award for costs in an amount of

$77,931.15, which includes the amount awarded in this

Court’s June 7, 1994 Order (Doc. # 849) and the amounts

for the last two quarters of 1993, and all of 1994. Allow-

able costs are provided for in 28 U.S.C. § 1920 which

provides:

ee ee See ee ee Oe ee

App. 23

A judge or clerk of any court of the United

States may tax as costs the following:

(1) Fees of the clerk, and marshal;

(2) Fees of the court reporter for all or any

part of the stenographic transcript neces-

sarily obtained for use in the case;

(3) Fees and disbursements for printing

and witnesses;

(4) Fees for exemplification and copies of

papers necessarily obtained for use in the

case;

(5) Docket fees under section 1923 of this

title;

(6) Compensation of court appointed

experts, compensation of interpreters, and

salaries, fees, expenses, and costs of special

interpretation services under section 1828 of

this title.

After careful review of the Plaintiffs’ list of costs

expended on this case from the third quarter of 1993 to

date, this Court finds that all of Plaintiffs’ costs are tax-

able and shall be awarded in full.

D. Interest

Pursuant to it’s Order of June 7, 1994 (Doc. # 849),

this Court determined that the balance of due and unpaid

partial fees and costs was $65,298.00 as of October 27,

1993. The Court also ordered that, subject to a forty-five

day delay, measured from June 7, 1994, the unpaid bal-

ance shall bear interest at the rate of one and three-

fourths percent per month compounded monthly until

paid.

App. 24

After further review, this Court finds that the federal

statutory interest rate should be applied. See Johnson v.

N.D. Workers Comp. Bureau, 428 N.W.2d 514, 519 (N.D.

1988). Interest on attorney’s fees is governed by federal

law. MidAmerica Federal Sav. & Loan v. Shearson/American

Exp., Inc., 962 F.2d 1470 (10th Cir. 1992). Specifically,

interest is allowable pursuant to 28 U.S.C. § 1961 which

states in relevant part:

(a) Interest shall be allowed on any money

judgment in a civil case recovered in a district

court. . . . Such interest shall be calculated from

the date of the entry of the judgment, at a rate

equal to the coupon issue yield equivalent (as

determined by the Secretary of the Treasury) of

the average accepted auction price for the last

auction of fifty-two week United States Treasury

bills settled immediately prior to the date of the

judgment.

The applicable language is “interest shall be calcu-

lated from the date of the entry of judgment...” Further,

it is recognized that interest on an attorney fee award

runs from the date of the judgment establishing the right

to the award. Jenkins By Agyei v. State of Missouri, 931 F.2d

1273, 1276 (8th Cir. 1991). Since it is improper to award

interest prior to a judgment being entered, it would be

improper for the Court to award interest from July 22,

1994 (45 days from the June 7, 1994 Order) to the date of

judgment. Therefore, this Court amends that part of it’s

June 7, 1994 Order regarding interest on attorney's fees

and costs.

App. 25

IT IS ORDERED that:

(1) plaintiffs are the prevailing parties in this

action and are entitled to an award of attorney's

) fees, including expert fees and costs;

(2) plaintiffs are awarded an amount of

$202,335.15 for attorney’s fees and costs. This

amount includes an award of $57,908.04 in

expert fees. Interest shall accrue on the total

amount of $202,335.15 at a rate in accordance

with 28 U.S.C. § 1961 from the date judgment is

entered;

(3) this Court amends its June 7, 1994 Order

(Doc. # 849) with respect to the award of interest

in that no prejudgment interest shall be

awarded to plaintiffs.

Dated this 3rd day of February, 1995

/s/ Bruce M. Van Sickle

Bruce M. Van Sickle, Judge

United States District Court