Appendix — Administrator, New York City Department of Human Resources v. Abbott House
Supreme Court brief1992
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No. 92 - Oreos QB WE CLcRK
IN THE
Supreme Comt of the United States
ADMINISTRATOR OF THE NEW YORK CITY
DEPARTMENT OF HUMAN RESOURCES, et al.,
Petitioners,
- against -
ABBOTT HOUSE, et al.,
Respondents.
APPENDIX TO PETITION FOR A WRIT OF
CERTIORARI TO THE UNITED STATES COURT
OF APPEALS FOR THE SECOND CIRCUIT
O. PETER SHERWOOD,
Corporation Counsel
100 Church Street,
New York, New York 10007.
(212) 788-1024, 1055 or 1010
LEONARD J. KOERNER’,
FRANCIS F. CAPUTO,
ELIZABETH DVORKIN,
of Counsel.
* Counsel of Record
TABLE OF CONTENTS
Page
Decision of the United States Court
of Appeals for the Second Circuit on
Reargument, Dated June 3,1992 .........-..-. A-1
Decision of the United States
Court of Appeals for the
Second Circuit, Dated
Sepecmmber 4 19RE . we et tees A-23
Decision of the United States
District Court for the
Southern District of New York,
Petes Piper 6 TS 4 wa tee A-45
Decision and Judgment of the United.States Court of
Appeals for the Second Circuit, on Rehearing. Dated
June 3, 1992
Ginited States Court of Appeals
FOR THE SECOND CIRCUIT
No. 896 -- August Term 1990
(Petition for rehearing filed October 8, 1991 Granted
June 3, 1992 by vacating Opinion filed September 24,
1991, 944 F.2d 1028 (2d Cir. 1991) and replacing it with
the following opinion)
Docket No. 90-7698
SHIRLEY WILDER; THOMAS EDWARDS, and
SHARON RODWELL; BARRY PARKER: by his
mother and next friend, MADELINE BUTLER:
ROBIN HERBERT, by her mother and next friend:
NANCY HERBERT; SHEDRICK ROBERTS, by his
mother and next friend; ANNIE ROBERT:
CHRISTOPHER TORIAN, by his mother and next
friend; LILLIAN TORIAN, on their own behalf and on
behalf of all others similarly situated; DR. KENNETH
CLARK, REV. HOWARD MOODY, DR. RICHARD
CLOWARD, MILDRED DAVIS,
Plaintiffs,
- against -
BLANCHE BERNSTEIN, individually and as
Administrator of thes NEW YORK CITY HUMAN
RESOURCES ADMINISTRATION; THE CITY OF
NEW YORK; THE NEW YORK CITY
DEPARTMENT OF SOCIAL — SERVICES:
BARBARA BLUM, individually and as commissioner of
they NEW YORK STATE DEPARTMENT OF
SOCIAL SERVICES; BEVERLY SANDERS,
individually and as Administrator of; SPECIAL
SERVICES FOR CHILDREN: CAROL PARRY;
ELIZABETH BEINE; LINDA MARINO, individually
and as Director of the Office of Allocations and
Accountability of Special services for Children,
ARTHUR LEVITT, as comptroller of the State of New
York; HARRISON J. GOLDIN; as Comptroller of the
City of New York, PAULA RABINOW, individually and
as Director of the Joint Planning Service; SANDRA
HOWARD, individually and as Supervisor of the Central
referral unit; SISTER MARY FRANCENE,
individually and as Administrator of the Angel Guardian
Home; SISTER SHEILA, individually and as Executive
Administrator of Astor Home for children; FRED
APERS, individually and as Executive Director of
Cardinal Hayes Home for Children; JOHN
DEMARTINO, individually and as Executive Director
of Cardinal McCloskey school and home for children;
JAMES P. O’NEILL, individually and as executive
director of catholic guardian society, CATHERINE
WHITE, individually and as director of catholic guardian
society of the diocese of Brooklyn; SISTER UNA
MCCORMACK, individually and as executive director
of catholic home bureau for dependent children; DR.
JEROME GOLDSMITH, individually and as executive
director president of Jewish Board of Guardians; ABE
LAVINE, individually and as executive vice president of
Jewish Child care; ASSOCIATION OF NY; JACOB
TROBE; BROTHER BRENDAN BREEN,
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individually and as administrator of Lincoln Hall:
BROTHER CHRISTOPHER FOLEY; RALPH
CHILLION, individually and as Director of Little
Flower Children’s services; SISTER ROSALIE
MCNAUGHTON, individually and as executive director
of McMahon services for children; SISTER MARY
JAMES, individually and as administrator of Madonna
Heights School for Girls; KENNETH A. MILLER,
individually and as director of Maimonides Residential
Centers; ISAAC MAIZES; SISTER MARY
CHRYSOSTOM, individually and as administrator of
Mercy Home for Children; BATHSHEVA MANDEL,
individually and as director of Mishkon B’Nai Y’Israel:
MONSIGNOR EDMUND F.- FOGARTHY,
individually and as Executive director of Mission of the
Immaculate Virgin; SISTER MARIAN CECILIA
SCHNEIDER, individually and as Executive Director of
the New York Foundling Hospital; LESTER
KAUFMAN, Individually and as Executive Director of
Ohel Children’s Home; HUGH WALLACE,
individually and as Residence Director of Pius XII
school; BROTHER ROBERT FONTAINE; DENIE
BARRY, individually and as Executive Director of St.
Agatha Home for Children; ROSEMARY A.
SHERIDAN, individually and as executive director of St.
Cabrini Home Inc.; ROBERT J. MCMAHON,
individually and as Executive Director of St.
Christopher’s Home; SISTER MARY PATRICK,
individually and as executive director of St. Dominic’s
Home; SISTER MARY SHEILA, individually and as
director of St. Germaine’s Home; BROTHER
THOMAS TRAGER, individually and as Executive
director of St. John’s Residence and school for boys;
SISTER) RITA MEANEY, individually and as
a
A-4
administrator of St. Joseph’s Children services; SISTER
MARITA PAUL, individually and as executive director
of St. Joseph’s home of Peekskill; SISTER MARY
OLIVA, individually and as administrator of St. Mary’s
of the angels home; EMANUEL J. STARACE,
individually and as executive director of St. Michael’s
Home; SISTER DELLA MAE QUINN, R.S.M.: ; REV.
ROBERT M. HARRIS, individually and as
administrator of St. Vincent’s Hall: JOSEPH
ALTHEIMER, individually and as administrator of
sister of the good shepherd residences,
Defendants-Appellants,
ABBOTT HOUSE, BERKSHIRE FARM CENTER &
SERVICES FOR CHILDREN, BROOKLYN HOME
FOR CHILDREN, BROOKWOOD CHILD CARE,
EPISCOPAL MISSION SOCIETY, GREEN
CHIMNEYS CHILDREN’S SERVICE,
HEARTSEASE HOME, INC., INWOOD HOUSE,
LAKESIDE SCHOOL, LOUISE WISE SERVICES,
LUTHERAN COMMUNITY SERVICES, PUERTO
RICAN FAMILY ASSOCIATION, ST.
CHRISTOPHER-JENNIE CLARKSON CHILD
CARE SERVICES, SHELTERING ARMS
CHILDRENS SERVICE, SOCIETY FOR SEAMAN’S
CHILDREN, SPENCE-CHAPIN SERVICES TO
CHILDREN, TALBOT PERKINS CHILDREN’S
SERVICES, THE CHILDREN’S AID SOCIETY, and
THE CHILDREN’S VILLAGE,
Intervenors-Appellees.
Before: OAKES, Chief Judge,
CARDMONE and WALKER, Circuit Judges
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The City of New York appeals from an order of the
United States District Court for the Southern District of
New York (Ward, J.) entered June 29, 1990, awarding
attorneys’ fees to a group of intervenors under 42 U.S.C.
§ 1988.
Remanded
ELIZABETH DVORKIN, New York, New York
(Victor A. Kovner, Corporation Counsel of the City of
New York, Stephen J. McGrath, Francis F. Caputo, New
York, New York, of counsel), for Defendants-Appellants.
DONALD J. COHN, New York, New York; (Bruce
Topman, Webster & Sheffield, New York, New York;
Stephen Wise Tulin, Polier, Tulin, Clark & Zalk, New
York, New York, of counsel), for Intervenors-Appellees.
CARDAMONE, Circuit Judge:
This panel had before it last year an appeal by the
City of New York (City or appellant) from a June 29, 1990
order of the United States District Court for the
Southern District of New York (Ward, J.) awarding
$355,388.85 in attorneys’ fees to appellees-intervenors, a
group of 19 private child care agencies.! We were asked
1
The intervenors group consists of the following agencies: Abbott
House, Berkshire Farm Center & Services for Children, Brooklyn
Home for Children, Brookwood Child Care, The Children’s Aid
Society, The Cluldren’s Village, Episcopal Mission Society, Green
Chimneys Children’s Service, Heartsease Home, Inc., Inwood
House, Lakeside School, Louise Wise Services, Lutheran Com-
(Footnote Continued)
A-6
on that appeal to determine whether the intervenor
group, which contributed importantly to the formation of
the settlement we had previously approved in Wilder y.
Bernstein, 848 F.2d 1338 (2d Cir. 1988), was entitled to
such an award under 42 U.S.C. § 1988 (1988). In a
decision by a divided panel (Oakes, C.J., dissenting), we
reversed the intervenors’ award. See Wilder y. Bernstein,
944 F.2d 1028 (2d Cir. 1991),
Subsequently, a petition for a rehearing with a sug-
gestion for rehearing en banc was filled by intervenors.
Upon further reflection we are all now convinced,
primarily by the views expressed by the Chief Judge in
his dissenting opinion, that the intervenors are entitled
to an award of attorneys’ fees. The petition for rehearing
is therefore granted. Our prior opinion reported at 944
F.2d 1028 reversing the district court order of June 29,
1990 is vacated and replaced with the following opinion,
which prior to its filing has been circulated to all the
active and senior judges of this Court. The case must
nonetheless be remanded to the district court for it to
sort out what should be the amount of those fees. We set
forth guides for that purpose later in this opinion to
inform the district court in the exercise of its ciscretion.
BACKGROUND
The facts are set forth in Judge Ward’s thorough
opinion reported at 725 F. Supp. 1324 (S.D.N.Y, 1989),
with which we assume the reader’s familiarity, as well as
in his opinion approving the settlement of the underlying
(Footnote Continued)
munity Services, Puerto Rican Family Association, St.
Christopher-Jennie Clarkson Child Care Services, Sheltering
Arms Children’s Service, Society for Seamen’s Children,
Spence-Chapin Service to Children, and Talbot Perkins Children’s
Service.
A-7
lawsuit, reported at 645 F. Supp. 1292 (S.D.N.Y. 1986).
We recount only those facts relevant to this appeal.
The underlying litigation commenced in 1973 when
New York City’s child care placement system was chal-
lenged by a group of plaintiffs representing a class of
Protestant Black children. Plaintiffs ultimately asserted
in their complaint four grounds on which they attacked
the City’s foster care system: (1) the child care system
operated to discriminate against children based on race,
(2) it discriminated on the basis of religion, (3) it
amounted to an establishment of religion, and (4) it
unduly burdened the free exercise rights of Protestant
children. The complaint sought declaratory and injunc-
tive relief under 42 U.S.C. § 1983, 1985, and 1986, and 28
U.S.C. § 2201 and 2202. The matters alleged in the
complaint were claimed to violate the First and Four-
teenth Amendments of the United States Constitution,
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d
(1982), and New York anti-discrimination regulations,
18 N.Y.C.R.R. § 303.1, 303.2 (1978).
In this complex litigation many groups became in-
volved to va ing degrees and for varying reasons. The
main participants were (1) plaintiffs, a group of Protes-
tant Black children in need of care outside their homes;
(2) defendants New York City and municipal officials
responsible for the City’s child care system; (3) defen-
dants administrators of private, religiously affiliated,
either Jewish or Catholic, child care agencies (defendant
agencies); and (4) intervenors administrators of 19
private child care agencies. Among the intervenors were
former defendant agencies who had been previously dis-
missed from the action with prejudice, some who had
been dismissed without prejudice, and others who had
never before been involved in the action.
A-8
In the summer of 1983, Shortly before trial was
scheduled to begin, plaintiffs and the City began negotia-
tions in an attempt to reach a settlement. At that time
intervenors had in their care 4,600 children constituting
25 percent of the 17,000 children then in the City’s foster
care system. Most of those in intervenors’ care were
Black Protestant children and belonged therefore to the
plaintiff class. In January 1984 some of the eventual
intervenors wrote to the Corporation Counsel of New
York City expressing strong objections to drafts of the
settlement negotiated by it and plaintiffs. In April of that
year plaintiffs and the City presented a proposed stipula-
tion of settlement to the district court. The settlement
ignored comments and suggestions made by the inter-
venor agencies, and was objected to by the defendant
agencies and by intervenors. Intervenors continued to
press their objections and, on June 15, 1984, were
granted leave to intervene "for the limited purpose of
Opposing the proposed settlement."
We digress for a moment to discuss how leave to
intervene came about. Although no petition for inter-
vention was filed, letters, memoranda and affidavits
objecting to the stipulation were submitted prior to the
date intervention was ordered. The customary terms of
either "plaintiff-intervenor" or "defendant-intervenor"
were not used to refer to the intervenors. Nor does the
district court’s order set forth on what grounds and under
which section of Fed. R.Civ. P, Rule 24 they were per-
mitted entry into the action. In the case of at least some
of the former defendant intervening agencies, the
original parties had agreed in the decree permitting their
dismissal that the dismissed agencies would receive
reasonable notice of any proposed settlement and would
be permitted, as of right, to appear and participate in any
settlement proceeding. The district court considered the
A-9
intervenors "nonparties vis-a-vis the underlying constitu-
tional claims in the lawsuit" and, despite their
constitutional objections, stated the intervenors joined
the lawsuit for the "sole purpose of objecting to the
Stipulation on clinical grounds," 645 F. Supp. at 1350.
Nevertheless, it is plain from intervenors’ 41 com-
prehensive objections to the proposed stipulation of
settlement that the foster care children’s constitutional
rights were raised. Some objections were addressed, it is
true, solely to the administrative unworkability of the
settlement. But a number of objections challenged the
stipulation’s failure to consider adequately the needs of
the children served, and its discrimination on equal
protection and religious grounds. For example, inter-
venors alleged
9. ... the Stipulation will reduce the level of
care provided to all children and families
in the system.
10. [Twelve paragraphs] taken together
authorize provision of their parents’
religious beliefs in violation of the First
and Fourteenth Amendments to the Con-
stitution of the United States.
16. The incorporation of . . . the Preferred
Placement System... to rank agencies has
no place in a federal court order in an
action alleging racial and religious dis-
crimination.
17. No agency should refuse to provide care
to any child by reason of such child’s race
or religion and SSC shall not permit any
agency with which it contracts to do so.
19. Paragraph 14 improperly treats transfers
to more restrictive placements differently
from transfers to less restrictive place-
ments although either may be equally
sound for different children.
Some objections were of a mixed variety, raising
issues going to the clinical and administrative interests of
the agencies as well as to the best interests, constitutional
and otherwise, of the children.
Negotiations, in which intervenors then Ppar-
ticipated, continued through the summer of 1984. In
August basic agreement on general topics was reached.
The parties continued to negotiate, this time in open
court, and in January 1985 a stipulation of settlement was
submitted. On October 8, 1986, over the objections of
the defendant agencies, the district court approved the
stipulation of settlement. On appeal, we affirmed. 848
F.2d 1338.
On March 17, 1989 intervenors moved for
attorneys’ fees as prevailing parties under § 1988.
Specifically, they sought from the City fees of
$416,052.50, enhanced by a factor of 1.75 for a total of
$775,303.50, disbursements of $17,020.59, and continu-
ing City liability for fees related to enforcement of the
decree. The City opposed the application, asserting that
intervenors were not a prevailing party because they had
no federal constitutional or Statutory rights within the
meaning of 42 U.S.C. § 1988 (1988) at stake in the
litigation. The City had already paid plaintiffs $ 1,775,000
in attorneys’ fees and costs pursuant to an offer of judg-
ment submitted by the City in late June 1989, which was
accepted by plaintiffs shortly thereafter,
In its opinion approving the stipulation of settle-
ment and in its opinion awarding attorneys’ fees to
intervenors, the district court detailed intervenors’ ex-
tensive contributions in reaching the settlement finally
accepted by all participants, except the defendant agen-
cies. 725 F. Supp. at 1327-29. Because they had "no axes
to grind," the district court stated, intervenors were able
to measure the proposals according to the best interests
of the children and provide it with valuable insights into
the clinical and administrative realities of child care. The
stipulation of settlement finally adopted, while adhering
to the general outline of the original stipulation, was
influenced considerably by the concerns aired by inter-
venors and reflected "numerous changes -- some minor,
some substantial -- that address virtually all of the con-
cerns raised by the intervenors.” 725 F. Supp. at 1329
(quoting 645 F. Supp. at 1348).
Given their "comprehensive" and "detailed" efforts,
their "integral and essential role," and their "significant
impact" on the creation of a remedy that vindicated the
civil rights of the children and their families in the foster
care system, the district court held that the intervenors
were therefore prevailing parties entitled to an award of
attorneys’ fees and costs. It disagreed with intervenors’
computation of those fees and denied their request for
an enhancement factor. Instead it awarded fees in the
amount of $355,388.85 and disbursements of $10,212.35.
It is from that decision that the City appealed. We now
remand the question of the amount of the award of
attorneys’ fees to the district court.
DISCUSSION
A. AnIntervenor May Be a Prevailing Party
The City challenges the trial court’s threshold con-
clusion that intervenors were a prevailing party and thus
eligible for attorneys’ fees under 42 U.S.C. § 1988. We
begin with the American Rule that declares no attorneys’
EES
A-12
fees are recoverable absent xpress statutory authority
for such an award. See Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 561-62
(1986). Unless Congress empowers it, a federal court has
no authority to award attorneys’ fees to prevailing par-
ties. See Alyeska Pipeline Serv. Co. y. Wilderness Soc Y,
421 U.S. 240, 269 (1975). Hence, our task is to determine
whether Congress in enacting § 1988 contemplated an
award of attorneys’ fees in the present circumstances.
We turn to that statute, which states in pertinent
part:
In any action or proceeding to enforce
a provision of sections 1981, 1982,
1983, 1985, and 1986 of this title, title
IX of Public Law 92-3 18, or title VI of
the Civil Rights Act of 1964, the court,
in its discretion, may allow the
prevailing party, other than the United
States, areasonable attorney’s fee as
part of the costs.
42 U.S.C. § 1988 (Act). Section 1988 is analyzed in the
Same manner as other similarly worded fee-shifting
Statutes. See Indep. Fed’n of Flight Attendants y. Zipes,
491 U.S. 754, 758 n.2 (1989) (substantially similar lan-
guage found in 42 U.S.C. 2000e-S(k), 42 U.S.C. §
2000a-3(b), and 42 U.S.C. § 1988 "is ‘a Strong indication’
that they are to be interpreted alike"). "The touchstone
of the prevailing party inquiry must be the material al-
teration of the legal relationship of the Parties in a
manner which Congress sought to promote in the fee
Statute." Texas State Teachers Ass'n v. Garland Indep.
School Dist., 489 U.S. 782, 792-93 (1989). Parties have
"prevailed" for Purposes of shifting attorneys’ fees "if
they succeed on any significant issue in litigation which
A-13
achieves some of the benefit the parties sought in bring-
ing the action.” Hensley v. Eckerhart, 461 U.S. 424, 433
(1983) (quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-
79 (Ast Cir. 1978)).
Although the statute expressly conditions the award
of attorneys’ fees upon the discretion of the court, the
effect of this language has been interpreted to create a
strong preference in favor of the prevailing party’s right
to fee shifting. Therefore, "[a] party seeking to enforce
the rights protected by the statutes covered by [§ 1988],
if successful, ‘should ordinarily recover an attorney’s fee
unless special circumstances would render such an award
unjust." S. Rep. No. 1011, 94th Cong., 2d Sess. 4,
reprinted in 1976 U.S. Code Cong. & Admin. News 5908,
5912 (Senate Report) (quoting Newman v. Piggie Park
Enterprises, Inc., 390 U.S. 400, 402 (1968)). This same
section of the legislative history of § 1988 specifically
contemplates that an intervenor may be a prevailing
party. "In the large majority of cases the party or parties
seeking to enforce such rights will be the plaintiffs and/or
plaintiff-intervenors. However, in the procedural pos-
ture of some cases, the parties seeking to enforce such
rights may be the defendants and/or defendant-inter-
venors." /d. at 4 n.4, reprinted in 1976 U.S. Code Cong.
& Admin. News at 5912 n.4.
The fact that a claim has been resolved by settle-
ment, as in this case, does not preclude a finding that
intervenors are prevailing parties; it is plain that a party
may prevail when it vindicates rights -- regardless of
whether there is a formal judgment -- through a settle-
ment or consent judgment. See, e.g., Hewitt v. Helms, 482
U.S. 755, 760-61 (1987); Maher v. Gagne, 448 U.S. 122,
129 (1980); Koster v. Perales, 903 F.2d 131, 134 (2d Cir.
1990); Senate Report at 5, reprinted in 1976 U.S. Code
Cong. & Admin. News at 5912.
a
Actions alleging civil rights violations traditionally
seek injunctive relief directly affecting not only the plain-
tiffs, but also certain non-participants and less directly
the public at large. In addition to permitting non-par-
ticipants to protect their implicated interests,
intervention furthers the goals of efficiency and unifor-
mity. To forbid the shifting of attorneys’ fees to
intervenors, who could otherwise bring a separate action
later as plaintiffs alleging the same civil rights violations
-- even, as in this case, those that persist after entry of a
proposed consent settlement -- defeats the goal of judi-
cial economy. Hence, there is no reason why the present
intervenors, whether they be styled intervenor-plaintiffs
or intervenor-defendants, may not be prevailing parties
for purposes of § 1988.
B. Present Intervenors are Prevailing
Parties
The next question to be addressed is whether the
present agency intervenors are such prevailing parties.
In awarding attorneys’ fees, the district court found that
as a result of intervenors’ efforts the settlement was
modified in ways that directly benefitted the children in
the child care system, and it concluded that a material
alteration of the legal relationship of the parties in a
manner that Congress sought to promote in § 1988 had
therefore been effected. 725 F. Supp. at 1332.
Appellant City does not dispute the fact that
appellees’ input was helpful to children in the child care
system, but it contends that contributions toa settlement,
no matter how important or helpful, do not entitle these
intervenors to attorneys’ fees. Something more is
needed, the City insists, before an award may be made
under § 1988, that is, the party seeking an award must
assert a violation of its own rights under the applicable
civil rights statutes. Because intervenors asserted no
such right, the City concludes, they may not be con-
sidered prevailing parties. Careful analysis of the
Statute’s language, rules, legislative history and
decisional law construing § 1988 does not support the
City’s view of the statute.
We begin by reviewing the language of that statute,
United States v. James, 478 U.S. 597, 604 (1986), and
assume the ordinary meaning of the language used ex- -
presses Congress’ purpose. Amentcan Tobacco Co. v.
Patterson, 456 U.S. 63, 68 (1982). Section 1988 expressly
permits fees to be shifted to parties who prevail in certain
enumerated civil rights actions. A limitation that only
parties who prevail in vindicating their own civil rights
may be awarded attorneys’ fees is not found in the Act
and such a reading of § 1988 does not comport with its
plain and ordinary meaning.
At the same time we recognize that there are limita-
tions on who may intervene in a civil rights suit. Either
the applicant must have an interest implicated by the
underlying suit that might be impaired, one which is not
adequately represented by the original parties to the
action, Fed. R. Civ. P. Rule 24(a)(2), or its "claim or
defense and the main action [must] have a question of
law or fact in common." Fed. R. Civ. P. Rule 24(b)(2).
Rule 24 does not permit just any interested person to
intervene and become a party to a suit. Since § 1988
extends fees only to prevailing parties in the action or
proceeding, see Morales v. Turman, 820 F.2d 728, 732
(Sth Cir. 1987) (amicus curiae, without intervention or
standing, never participated as "party" in proceeding and
is not entitled to fees despite providing beneficial input
to remedy), ruling that present intervenors are prevailing
parties will not open the flood-gates to amicus curiae,
good samaritans, or even litigious meddlers so that they
)
A-16
may "team up" and overburden the nonprevailing party
with excessive attorneys’ fees. Rule 24 permits interven-
tion in a civil rights action therefore not only to parties
alleging violations of their own civil rights, but also to
intervening parties alleging violations of the civil rights
of individuals towhom they owe some duty or havea legal
obligation to protect.
Considering next the legislative history, it may ar-
guably be asserted from certain references that fee
shifting is intended for the victims who vindicate their
own civil rights. See, e.g., Senate Report at 2, reprinted in
1976 U.S. Code Cong. & Admin. News at 5910 ("If
private citizens are to be able to assert their civil rights .
.. then citizens must have the Opportunity to recover what
it costs them to vindicate these rights in court") (emphasis
added); H.R. Rep. No. 1588, 94th Cong., 2d Sess. 1
(1976) (act designed to grant effective access to courts
for the majority of victims of civil rights violations who
are unable financially to vindicate their rights).
Yet, it would be relying on a very slim reed indeed
were we to limit the plain text of a statute because of two
references found in its legislative history. Neither refer-
ence purports to limit the scope of the Act’s effect, and
each uses only general wording that applies to fee-shift-
ing in the typical case. The omission of a reference in
that history to the rights of third Parties, those permitted
to assert the rights of others through the law of Jus tertii,
OF associational standing, is not dispositive; and, to place
significance on it reads the cited legislative reports out of
context. The legislative history does not express an in-
tent so clearly contrary to the statute that it can support
a conclusion more limited than the ordinary meaning of
the statutory language used, one, moreover, in conflict
with the broad remedial Purpose of § 1988. See Con-
A-17
sumer Product Safety Comm’n v. GTE Sylvania, Inc., 447
U.S. 102, 108 (1980).
Instead, Congress aimed under the Act "to use the
broadest and most effective remedies" to ensure that the
objectives of the civil rights laws are attained. See Senate
Report at 3, reprintedin U.S. Code Cong. & Admin. News
at 5910. One way to accomplish that purpose is to
promote the private enforcement of civil rights by en-
couraging litigants to act as "private attorneys general."
The legislature recognized that inadequate resources of
the enforcement division of the executive branch
prevented it from eradicating all civil rights abuses solely
through the government’s efforts. Shifting attorneys’
fees enabled Congress to promote vigorous enforcement
of its civil rights policies, while limiting the growth of the
bureaucracy charged with its administration. Again,
Congress was aware that victims of civil rights violations
usually are not wealthy people and "/t]/he organizations
who have helped them bring their cases are frequently not
well financed." Donnell v. United States, 682 F.2d 240,
246 (D.C. Cir. 1982), cert. denied, 459 U.S. 1204 (1983)
(quoting 122 Cong. Rec. 35127 (October 1, 1976)
(remarks of Rep. Holtzman)) (emphasis added). In fact,
the Senate Report in its entirety stands as a singularly
lucid pronouncement that the award of attorneys’ fees
made under § 1988 should be interpreted broadly so as
to avoid frustrating enforcement of fundamental laws.
Thus, intervenors may act effectively as private at-
torneys general in vindicating abuses of civil rights, and
where they have "contributed importantly to the creation
of remedies," we and other courts have held they are
entitled to an award of attorneys’ fees. See United States
v. Board of Educ. of Waterbury, 605 F.2d 573, 576 (2d Cir.
1979). See also Grove v. Mead School Dist. No. 354, 753
F.2d 1528; 1535 (9th Cir.), cert. denied, 474 U.S. 826
<<
(1985) ("[a]wards to intervenors Should not be granted
unless the intervenor plays a significant role in the litiga-
tion"); Miller v. Statts, 706 F.2d 336, 340-42 (D.C. Cir.
1983) (intervenors who allege a colorable civil rights
claim may be entitled to attorneys’ fees); Donnell, 682
F.2d at 247 (fees may be awarded to intervenors in a
successful suit if they played a Significant role in produc-
ing the outcome).
Waterbury presents analogous facts instructive on
the resolution of the present case. There the intervenor
was not the school children whose civil rights were impli-
cated in the underlying school desegregation case, but
was an Organization consisting of Hispanic community
leaders, individuals, and parents of some of the students.
Waterbury, 605 F.2d at 574. In the foster care context
presented here, the intervenor child care agencies have
similar in loco parentis duties running to the children in
their care, see New York Soc. Serv. Law § 383-384 (Mc-
Kinney 1983 & Supp. 1991); cf. 42 U.S.C. § 675(S)(A)
(1988). In both cases, the intervenor group’s constituen-
cy included the plaintiff class of children asserting a civil
rights interest.
For many would be intervenors, the availability of
such a remedy would be a hollow one were the recovery
of attorneys’ fees not to exist as an incentive. See Senate
Report at 3, reprinted in 1976 U.S. Code Cong. & Admin.
News at 5910; Tamanaha, The Cost of Preserving Rights:
Attorneys’ Fee Awards and Intervenors in Civil Rights
Litigation, 19 Harv. C.R.-C.L. L. Rev. 109, 118-20 (1984).
Although capable of acting as effective private attorneys
general, many potential parties would never intervene in
civil rights actions because they, and the constituencies
the represent, are economically disadvantaged. See
Tamanaha, supra, at 143-44 n.130. In addition to
duplicating effectively the limitations on joining actions
A-19
imposed by Rule 24, a narrow interpretation of § 1988
thwarts the fashioning of appropriate injunctive relief.
Without the valuable perspective of those who might
properly intervene -- but for their financial inability -- a
reconciliation of the diverse community interests of
those affected is frustrated. See Waterbury, 605 F.2d at
576.
Consequently, because implicated interests or com-
mon legal or factual questions involved violations of civil
rights protected by the Constitution or federal statutes
enumerated under § 1988, and because the efforts of the
intervenors contributed importantly to the creation of
remedies Congress sought to advance in the fee statute,
the present intervenors properly were held to be prevail-
ing parties entitled to an award of attorneys’ fees.
C. Computation of Intervenors’ Attorneys’
Fees Award
How to disentangle the numerous objections to the
settlement and decide which are subject to an award and
which are not is the remaining question. Rule 24, as
earlier noted, requires that a minimum nexus or connec-
tion be present between the intervening party whose
interests are implicated and the original parties to the
action. Given that the relationship between the inter-
venors in this case and the children entrusted in their care
provided a sufficient nexus, our inquiry turns to whether
intervenors’ efforts effected the requisite "material al-
teration" as envisioned by Congress in § 1988, see Texas
State Teachers Ass'n, 489 U.S. at 793, that is, whether
intervenors’ "participation contributed importantly to
the creation of remedies." Waterbury, 605 F.2d at 576.
In answering that inquiry the following discussion
should be helpful. First, efforts by counsel for inter-
venors that merely duplicate those of the plaintiffs in
————
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effectuating the foster care children’s civil rights should
not result in an award of attorneys’ fees. See Grove, 753
F.2d at 1535: Donnell, 682 F.2d at 247-48 (where "the
intervenor contributed little or nothing of substance in
producing the outcome, then fees should not be
awarded"). See also Alabama Power Co. v. Gorsuch, 672
F.2d 1 (D.C. Cir. 1982); Seattle Sch. Dist. No. 1 vy.
Washington, 633 F.2d 1338 (9th Cir. 1980), aff'd, 458 U.S.
457 (1982). The plaintiffs in a civil rights action have the
priority claim for an award of fees as prevailing parties
where their efforts have effectuated some or all of the
civil rights involved in the litigation. The policies under-
lying private attorneys general and intervention are not
SO compelling when a suit has already been initiated and
the potential intervenor’s interests are adequately repre-
sented. Otherwise there would be a temptation to load
up unnecessarily on intervenors in civil rights actions to
compel defendants to settle because of the potential
exposure to large legal fees.
The legal efforts of a plaintiff, on the other hand,
may be legally deficient in a particular case or, at least,
on some issues in the case. Hence, second, when non-
duplicative efforts by intervenors effectuate the civil
rights at issue they are entitled to an award because such
a result furthers the purpose of the civil rights statutes in
a fashion envisioned by Congress. For instance, where
intervenors prevail in demonstrating that constitutional
infirmities persisted under a Proposed stipulation agreed
to by plaintiffs, as occurred in the present case, their
efforts probably would not be considered duplicative.
Whether there was duplication of effort, nevertheless, is
a question to be resolved by the district court.
Third, it follows that Parties whose intervention
produces results that are unrelated to remedying viola-
tions of civil rights are not eligible for attorneys’ fees.
A-21
Section 1988 is expressly limited to suits to enforce
specified civil rights provisions. Section 1988 therefore
would not apply to an intervenor who prevails upon a
non-civil rights claim because no "material alteration of
the legal relationship ... in a manner which Congress
sought to promote" has been achieved. Texas State
Teachers Ass'n, 489 U.S. at 793 (emphasis added).
We recognize there will be situations where efforts
expended on separate issues likely will be difficult to sort
out. Questions of duplication and mixed motives are
further clouded when litigation is resolved through set-
tlement, when intervening parties object to a proposed
settlement agreed to by the original plaintiffs, and still
further in a case such as the instant one where all the
parties claim to be acting in the foster children’s best
interests. Courts nevertheless must take care not to shift
attorneys’ fees in a manner Congress did not envision. In
Waterbury, we noted that complex civil rights cases re-
quire a court to be flexible when using its discretion in
awarding attorneys’ fees to ensure that Congress’ aim in
enacting these statutes is realized. Waterbury, 605 F.2d
at 576.
As a consequence, we hold finally that where a party
has mixed motives for intervening, each of which are
permissible grounds for intervening, and the intervening
party prevails, the non-duplicative attorneys’ fees at-
tributable to the efforts expended in pursuit of civil ri ghts
remedies may be recovered. And, where the efforts that
furthered civil rights objectives concomitantly advanced
non-civil rights concerns, for example, administrative
and clinical concerns, attorneys’ fees may also be
awarded. Any adjustment in the fee award based upon
the extent to which a party’s participation contributed to
the ultimate remedy, including considerations of
A-22
duplication and motivations other than civil rights, rests
appropriately in the district court’s sound discretion.
CONCLUSION
The district court awarded attorneys’ fees to inter-
venors because the 19 nondefendant child care agencies
prevailed on civil rights claims as well as clinical and
administrative objections to the proposed stipulation. It
did not discuss to what degree the work of intervenors’
counsel may have been duplicative with that expended
by plaintiffs’ counsel, or what portion of that work can be
attributed solely to advancing concerns other than civil
rights violations. For these determinations, and any cor-
responding changes in the fee award they might merit,
we remand the instant matter to the district court for
further proceedings in accordance with this opinion.
A-23
Decision and Judgment of the United States Court of
Appeals for the Second Circuit, Dated September 4, 1991
Gnited States Court of Appeals
FOR THE SECOND CIRCUIT
No. 896 -- August Term 1990
(Argued January 17, 1991 Decided September 24,
1991)
Docket No. 90-7698
SHIRLEY WILDER; THOMAS EDWARDS, and
SHARON RODWELL; BARRY PARKER; by his
mother and next friend, MADELINE BUTLER;
ROBIN HERBERT, by her mother and next friend;
NANCY HERBERT; SHEDRICK ROBERTS, by his
mother and _ next friend; ANNIE ROBERT;
CHRISTOPHER TORIAN, by his mother and next
friend; LILLIAN TORIAN, on their own behalf and on
behalf of all others similarly situated; DR. KENNETH
CLARK, REV. HOWARD MOODY, DR. RICHARD
CLOWARD, MILDRED DAVIS,
Plaintiffs,
- V. -
BLANCHE BERNSTEIN, individually and as
Administrator of the; NEW YORK CITY HUMAN
RESOURCES ADMINISTRATION; THE CITY OF
NEW YORK; THE NEW YORK CITY
DEPARTMENT OF SOCIAL — SERVICES;
BARBARA BLUM, individually and as commissioner of
thee NEW YORK STATE DEPARTMENT OF
A-24
SOCIAL SERVICES; BEVERLY SANDERS,
individually and as Administrator of; SPECIAL
SERVICES FOR CHILDREN; CAROL PARRY;
ELIZABETH BEINE; LINDA MARINO, individualiy
and as Director of the Office of Allocations and
Accountability of Special services for Children,
ARTHUR LEVITT, as comptroller of the State of New
York; HARRISON J. GOLDIN; as Comptroller of the
City of New York, PAULA RABINOW, individually and
as Director of the Joint Planning Service; SANDRA
HOWARD, individually and as Supervisor of the Central
referral unit; SISTER MARY FRANCENE,
individually and as Administrator of the Angel Guardian
Home; SISTER SHEILA, individually and as Executive
Administrator of Astor Home for children; FRED
APERS, individually and as Executive Director of
Cardinal Hayes Home _ for Children; JOHN
DEMARTINO, individually and as Executive Director
of Cardinal McCloskey school and home for children;
JAMES P. O'NEILL, individually and as executive
director of catholic guardian society; CATHERINE
WHITE, individually and as director of catholic guardian
society of the diocese of Brooklyn; SISTER UNA
MCCORMACK, individually and as executive director
of catholic home bureau for dependent children; DR.
JEROME GOLDSMITH, individually and as executive
director president of Jewish Board of Guardians; ABE
LAVINE, individually and as executive vice president of
Jewish Child care; ASSOCIATION OF NY; JACOB
TROBE; BROTHER BRENDAN ~ BREEN,
individually and as administrator of Lincoln Hall;
BROTHER CHRISTOPHER FOLEY; RALPH
CHILLION, individually and as Director of Little
Flower Children’s services; SISTER ROSALIE
A-25
MCNAUGHTON, individually and as executive director
of McMahon services for children; SISTER MARY
JAMES, individually and as administrator of Madonna
Heights School for Girls; KENNETH A. MILLER,
individually and as director of Maimonides Residential
Centers; ISAAC MAIZES; SISTER MARY
CHRYSOSTOM, individually and as administrator of
Mercy Home for Children; BATHSHEVA MANDEL,
individually and as director of Mishkon B’Nai Y’Israel;
MONSIGNOR EDMUND FF. FOGARTHY,
individually and as Executive director of Mission of the
Immaculate Virgin; SISTER MARIAN CECILIA
SCHNEIDER, individually and as Executive Director of
the New York Foundling Hospital; LESTER
KAUFMAN, Individually and as Executive Director of
Ohel Children’s Home; HUGH WALLACE,
individually and as Residence Director of Pius XII
school; BROTHER ROBERT FONTAINE: DENIE
BARRY, individually and as Executive Director of St.
Agatha Home for Children; ROSEMARY A.
SHERIDAN, individually and as executive director of St.
Cabrini Home Inc.; ROBERT J. MCMAHON,
individually and as Executive Director of St.
Christopher’s Home; SISTER MARY PATRICK,
individually and as executive director of St. Dominic’s
Home; SISTER MARY SHEILA, individually and as
director of St. Germaine’s Home; BROTHER
THOMAS TRAGER, individually and as Executive
director of St. John’s Residence and school for boys;
SISTER RITA MEANEY, individually and as
administrator of St. Joseph’s Children services; SISTER
MARITA PAUL, individually and as executive director
of St. Joseph’s home of Peekskill; SISTER MARY
OLIVA, individually and as administrator of St. Mary’s
il
A-26
of the angels home; EMANUEL J. STARACE,
individually and as executive director of St. Michael’s
Home; SISTER DELLA MAE QUINN, R.S.M.; REV.
ROBERT M. HARRIS, individually and as
administrator of St. Vincent’s Hall; JOSEPH
ALTHEIMER, individually and as administrator of
sister of the good shepherd residences,
Defendants-Appellants,
ABBOTT HOUSE, BERKSHIRE FARM CENTER &
SERVICES FOR CHILDREN, BROOKLYN HOME
FOR CHILDREN, BROOKWOOD CHILD CARE,
EPISCOPAL MISSION SOCIETY, GREEN
CHIMNEYS CHILDREN’S SERVICE,
HEARTSEASE HOME, INC., INWOOD HOUSE,
LAKESIDE SCHOOL, LOUISE WISE SERVICES,
LUTHERAN COMMUNITY SERVICES, PUERTO
RICAN FAMILY ASSOCIATION, ST.
CHRISTOPHER-JENNIE CLARKSON CHILD
CARE SERVICES, SHELTERING ARMS
CHILDRENS SERVICE, SOCIETY FOR SEAMAN’S
CHILDREN, SPENCE-CHAPIN SERVICES TO
CHILDREN, TALBOT PERKINS CHILDREN’S
SERVICES, THE CHILDREN’S AID SOCIETY, and
THE CHILDREN’S VILLAGE,
Intervenors-Appellees.
Before: OAKES, Chief Judge,
CARDAMONE and WALKER, Circuit Judges
The City of New York appeals from an order of the
United States District Court for the Southern District of
New York (Ward, J.) entered June 29, 1990, awarding
A-27
attorneys’ fees to a group of intervenors under 42 U.S.C.
§ 1988.
Reversed.
Judge Oakes dissents in a Separate opinion.
ELIZABETH DVORKIN, New York, New York
(Victor A. Kovner,
Corporation Counsel of the City of New York,
Stephen J. McGrath, Francis F. Caputo, New York, New
York, of counsel), for Defendants-Appellants.
DONALD J. COHN, New York, New York: (Bruce
Topman, Webster & Sheffield, New York, New York;
Stephen Wise Tulin, Polier, Tulin, Clark & Zalk, New
York, New York, of counsel), for Intervenors-Appellees.
CARDAMONE, Circuit Judge:
We again visit the controversy regarding New York
City’s scheme for providing child care services to foster
children who require placement in institutions and foster
homes. Before us is an appeal by the City of New York
(City or appellant) from a June 29, 1990 order of the
United States District Court for the Southern District of
New York (Ward, J.). awarding $355,388.85 in attorney’s
fees to appellees-intervenors, a group of 19 private child
care agencies. !
1
The intervenors group consists of the following agencies: Abbott
House, Berkshire Farm Center & Services for Children, Brooklyn
Home for Children, Brookwood Child Care, The Children’s Aid
Society, The Children’s Village, Episcopal Mission Society, Green
Chimneys Children’s Service, Heartsease Home, Inc., Inwood
House, Lakeside School, Louise Wise Services, Lutheran
Community Services, Puerto Rican Family Association, St.
Christopher-Jennie Clarkson Child Care Services, Sheltering Arms
Children’s Service, Society for Seamen’s Children, Spence-Chapin
Service to Children, and Talbot Perkins Children’s Services.
A-28
We are asked to determine whether an intervenor
group, which contributed importantly to the formation of
thc settlement we approved in’ Wilder v. Bernstein, 848
F.2d 1338 (2d Cir. 1988), is entitled to an award of
attorney’s fees under 42 U.S.C. § 1988 (1988). In making
that determination we can see Congress planned that
individuals asserting their civil rights should be able to
recover what it cost them to vindicate these rights, and
that awarding attorney’s fees to such individuals imple-
mented this design. Where Congress looks to one thing
as a solution to a problem, courts should not look to
another thing, and thereby alter Congress’ plan by
broadening the definition of those entitled to such fees.
Because we think that is what the district court did in this
case, we reverse.
BACKGROUND
The facts are set forth in Judge Ward’s thorough
opinion reported at 725 F. Supp. 1324 (S.D.N.Y 1989),
with which we assume the reader’s familiarity, as well as
in his opinion approving the settlement of the underlying
lawsuit, reported at 645 F. Supp. 1292 (S.D.N.Y. 1986).
We recount only those facts relevant to this appeal.
The underlying litigation commenced in 1973 when
New York City’s child care placement system was chal-
lenged by a group of plaintiffs representing a class of
Protestant Black children. Plaintiffs ultimately asserted
in their complaint four grounds on which they attacked
the City’s foster care system: (1) the child care system
operated to discriminate against children based on race,
(2) it discriminated on the basis of religion, (3) it
amounted to an establishment of religion, and (4) it
unduly burdened the free exercise rights of Protestant
children, who were not Catholic or Jewish. The com-
plaint sought declaratory and injunctive relief under 42
A-29
U.S.C. § 1983, 1985, and 1986, and 28 U.S.C. § 2201 and
2202. The matters alleged in the complaint were claimed
to violate the First and Fourteenth Amendments, Title
VI of the Civil Rights Act of 1964, 42 U.S.C. § 200d
(1982), and New York anti-discrimination regulations,
18 N.Y.C.R.R. §§ 303.1, 303.2 (1978).
In this complex litigation many groups became in-
volved to varying degrees and for varying reasons. The
main participants were (1) plaintiffs, a group of Protes-
tant Black children, who were neither Catholic nor
Jewish, in need of care outside their homes; (2) defen-
dants New York City and municipal officials responsible
for the City’s child care system; (3) defendants ad-
ministrators of private, religiously affiliated, either
Jewish or Catholic, child care agencies (defendant agen-
cies); and (4) intervenors.
In the summer of 1983, shortly before trial was
scheduled to begin, plaintiffs and the City began negotia-
tions in an attempt to reach a settlement. At that time
intervenors had in their care 4,600 children constituting
25 percent of the 17,000 children then in the City’s foster
care system. Most of those in intervenors’ care were
Black Protestant children and belonged therefore to the
plaintiff class. In January 1984 some of the eventual
intervenors wrote to the Corporation Counsel of New
York City expressing strong objections to drafts of the
settlement negotiated by it and plaintiffs. In April of that
year plaintiffs and the City presented a proposed stipula-
tion of settlement to the district court. The settlement
ignored comments and suggestions made by the inter-
venor agencies, and was objected to by the defendant
agencies and by intervenors. Intervenors continued to
press their objections and, on June 15, 1984, were
granted leave to intervene "for the limited purpose of
opposing the proposed settlement."
eee
A-30
Appellees presented comprehensive criticisms of
the proposed settlement supported by affidavits from
child care professionals. The objections were addressed
to the administrative unworkability of the settlement, its
failure to consider adequately the needs of the children
served, and its discrimination on religious grounds.
Negotiations, in which intervenors then participated,
continued through the summer. In August basic agree-
ment on general topics was reached. The parties
continued to negotiate, this time in open court, and in
January 1985 a stipulation of settlement was submitted.
On October 8, 1986, over the objections of the defendant
agencies, the district court approved the stipulation of
settlement. On appeal, we affirmed the settlement. 848
F.2d 1338.
On March 17, 1989 intervenors moved for
attorney’s fees under § 1988. Specifically, they sought
from the City fees of $416,052.50, enhanced by a factor
of 1.75 for a total of $775,303.50, disbursements of
$17,020.59, and continuing City liability for fees related
to enforcement of the decree. The City opposed the
application, asserting that intervenors were not a prevail-
ing party because they had no federal constitutional or
Statutory rights within the meaning of 42 U.S.C. § 1988
(1988) at stake in the litigation. The City had already
paid plaintiffs $1,775,000 in attorney’s fees and costs
pursuant to an offer of judgment submitted by the City
in late June 1989, which was accepted by plaintiffs shortly
thereafter.
In its opinion approving the stipulation of settle-
ment and in its opinion awarding attorney’s fees to
intervenors, the district court detailed intervenors’ ex-
tensive contributions in reaching the settlement finally
accepted by all participants, except the defendant agen-
cies. Because they had "no axes to grind," the district
A-31
court stated, intervenors were able to measure the
proposals according to the best interests of the children
and provide it with valuable insights into the clinical and
administrative realities of child care. The stipulation of
settlement finally adopted, while adhering to the general
outline of the original stipulation, was influenced by the
concerns aired by intervenors.
The court found intervenors’ efforts were essential
to the creation of a workable remedy that vindicated the
civil rights of the children and their families in the foster
care system, and held that the intervenors were therefore
prevailing parties entitled to an award of attorney’s fees
and costs. It did not accept appellees’ computation of
fees, denied their request for an enhancement factor, and
awarded fees in the amount of $355,388.85 and disburse-
ments of $10,212.35. The City of New York has
appealed.
DISCUSSION
The City challenges the district court’s conclusion
that intervenors were a prevailing party and thus eligible
for attorney’s fees under 42 U.S.C. § 1988 (1988). We
begin with the American Rule that declares no attorney’s
fees are recoverable absent express Statutory authority
for an award. See Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, 478 U.S. 546 561-62
(1986). Unless Congress empowers it, a federal court has
no authority to award attorney’s fees to prevailing par-
ties. See Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
421 U.S. 240, 269 (1975). Hence, our task is to determine
whether Congress in enacting § 1988 contemplated an
award of attorney’s fees in the present circumstances.
We turn to that statute, which states in pertinent
part:
i
A-32
In any action or proceeding to enforce a
provision of sections 1981, 1982, 1983, 1985, and
1986 of this title, title IX of Public Law 92-318,
or title VI of the Civil Rights Act of 1964, 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 (1988). Section 1988 is analyzed in the
Same manner as other similarly worded fee-shifting
siatutes. See Indep. Fed’n of Flight Attendants v. Zipes,
491 U.S. 754, 758 n.2 (1989). "The touchstone of the
prevailing party inquiry must be the material alteration
of the legal relationship of the parties in a manner which
Congress sought to promote in the fee statute." Texas
State Teachers Ass'n v. Garland Indep. School Dist., 489
U.S. 782, 792-093 (1989).
There is no question that the legislative history of
§ 1988 contemplates that an intervenor may be a prev?!
ing party. S. Rep. No. 1011, 94th Cong., 2d Sess. 4 n.4,
reprinted in 1976 U.S. Code Cong. & Admin. News 5908,
5912 n.4 (Senate Report) ("In the large majority of cases
the party or parties seeking to enforce such rights will be
the plaintiffs and/or plaintiff-intervenors."). Nor does
the fact that a claim has been resolved by settlement, as
in this case, preclude an award of attorney’s fees to the
prevailing party; it is plain that a party may prevail when
it vindicates rights -- regardless of whether there is a
formal judgment -- through a settlement or consent judg-
ment. See Hewitt v. Helms, 482 U.S. 755, 760-61 (1987);
Maher v. Gagne, 448 U.S. 122, 129 (1980); Koster v.
Perales, 903 F.2d 131, 134 (2d Cir. 1990); Senate Report
at 5, reprinted in 1976 U.S. Code Cong. & Admin. News
at 5912. In awarding attorney’s fees in the instant case,
A-33
the district court found that as a result of intervenors’
efforts the settlement was modified in ways that directly
benefitted the children in the child care system, and it
concluded that a material alteration of the legal relation-
ship of the parties in a manner that Congress sought to
promote in § 1988 had therefore been effected. 725 F.
Supp. at 1332.
Appellant City does not dispute the fact that
appellees’ input was helpful to children in the child care
system, but it contends that contributions toa settlement,
no matter how important or helpful, do not entitle these
intervenors to attorney’s fees. Something more is
needed before a court may take an award under § 1988,
that is, the party seeking an award must assert a violation
of its own rights under the applicable civil rights statutes.
The City insists intervenors have asserted no such right
and therefore may not be considered prevailing parties.
We agree.
In United States v. Bd. of Educ. of Waterbury, 605
F.2d 573 (2d Cir. 1979), we held intervenors may be
awarded attorney’s fees if they "contributed importantly
to the creation of remedies." Jd. at 576; see also Grove v.
Mead School Dist. No. 354, 753 F.2d 1528, 1535 (9th Cir.
1985) ("[a]wards to intervenors should not be granted
unless the intervenor plays a significant role in the litiga-
tion"); cf. Donnell v. United States, 682 F.2d 240, 247 (D.C.
Cir. 1982) (fees should not be awarded to intervenors in
a successful suit if they played an insignificant role in
producing the outcome).
Yet, in Waterbury, we did not specifically address
the question of whether an intervenor, in order to be
entitled to attorney’s fees as a prevailing party, must also
assert an interest protected by the civil rights statutes.
An examination of the factual background in Waterbury
ee
A-34
reveals that many members of the intervenor group’s
constituency in that case asserted such a civil rights inter-
est. See 605 F.2d at 574 (an organization consisting of
Puerto Rican parents, community leaders, and in-
dividuals, was permitted to intervene in an action seeking
to desegregate schools in order to protect the right of
Waterbury’s Hispanic students to attend integrated
schools and to be free from disproportionately bearing
the burden of the desegregaiion); see also Donnell, 682
F.2d at 244 (seven black voters intervening on the side of
the United States in an action brought by the Board of
Supervisors of Warren County, Mississippi, seeking a
declaratory judgment that a plan to establish voting dis-
tricts did not have a racially discriminatory purpose or
effect were found to be prevailing parties.) Thus, Water-
bury does not bear the weight placed on it by the district
court because the intervenors there were seeking to
vindicate their own civil rights, not the rights of others.
Legislative history supports the view that though
intervenors may be prevailing parties, it is only when they
assert their own civil rights that they are so considered.
Congress planned on having § 1988 serve as a mechanism
for vindicating the rights of those whose civil rights had
been violated, not for forwarding civil rights in general.
For example, the House Report states:
Because a vast majority of the victims of civil
rights violations cannot afford legal counsel, they
are unable to present their cases to the courts. In
authorizing an award of reasonable attorney’s
fees, [$ 1988] is designed to give such persons
effective access to the judicial process where
their grievances can be resolved according to
law.
A-35
H.R. Rep. No. 1588, 94th Cong., 2d Sess. 1 (1976).
The Senate Report contains language that even more
Strongly suggests that attorney’s fees were to be those
paid to the victims of constitutional injury, not simply a
party that aids in upholding the rights of those victims.
Senate Report at 2, reprinted in 1976 U.S. Code Cong. &
Admin. News at 5910 ("If private citizens are to be able
to assert their civil rights... then citizens must have the
Opportunity to recover what it costs them to vindicate
these rights in court") (emphasis added).
Because § 1988 is an exception carved out of the
American Rule by Congress, we must take care not to
award attorney’s fees that the legislative branch has not
authorized. The choice as to whether fees are available
and under what circumstances is a function ihat Congress
has reserved to itself. Russo v. New York, 672 F.2d 1014,
1023 (2d Cir. 1982), modified on other grounds, 721 F.2d
410. Before awarding fees it is necessary for a court to
find therefore some specific congressional plan ihat
provides that an intervenor, not asserting its own civil
rights, was an intended beneficiary of § 1988. Neither the
House nor the Senate Reports just cited contain any
notion that Congress anticipated that such parties would
be the beneficiaries of this legislation. Thus, it seems
inescapable that Congress did not contemplate awards of
attorney’s fees under § 1988 to persons other than to
those whose civil rights have been violated.
Here no member of the intervenor group has as-
serted any civil rights interests of its own. Instead,
intervenors became involved initially in the instant litiga-
tion because of their fear both that administrative
burdens imposed by the original proposed settlement
would make the foster care system even more unwork-
able than the record shows it presently is, and also give
rise to those clinical concerns that the list of intervenors’
A-36
objections in the trial court reveals, see 645 F. Supp. at
1346-47. On that score alone intervenors would doubt-
less have entered the settlement negotiations regardless
of whether attorney’s fees were available. Further, inter-
venors cannot be said to be the legal custodians or
guardians of the children in their care. That respon-
sibility belongs to the appropriate City agency. See N.Y.
Soc. Serv. Law § 383(2) (McKinney 1983 & Supp. 1991).
Thus, it does not appear that intervenors are possessed
of any interest that permits them to assert the civil rights
of the foster children in their care and to be considered
a prevailing party under § 1988.
Finally, we agree with the district court that
appellees’ efforts were beneficial to the children whose
rights were at stake, but the City’s earlier nearly two
million dollar payment for plaintiffs’ attorney’s fees was
for services that also vindicated the constitutional rights
of Protestant Black children, the same constituency in-
tervenors seek to be rewarded for representing.
Congress and not the courts determines whether a party
may be awarded attorney’s fees. See Alyeska Pipeline
Serv. Co., 421 U.S. at 269. And, since the intervenors
before us are not one of those parties, the district court’s
award of attorney’s fees to them must be reversed.
CONCLUSION
The judgment of the district court is reversed.
Intervenors’ request for attorney’s fees on appeal is
denied. Each party shall bear its own costs.
OAKES, Chief Judge, dissenting:
I dissent essentially for the reasons stated by Judge
Ward, Wilder v. Bernstein, 725 F. Supp. 1324 (S.D.N.Y.
1989), and because I think that the distinction drawn by
the panel majority between this case and United States v.
Board of Education of Waterbury, Connecticut, 605 F.2d
A-37
573 (2d Cir. 1979), where we awarded intervenors their
attorneys’ fees, is a distinction without a difference. The
panel majority’s narrow and formalistic reading of the
term "prevailing party" takes us down the same road as
Alyeska Pipeline Service Co. v. Wilderness Society, 421
U.S. 240 (1975) -- road rejected by Congress’ enactment
of the Civil Rights Attorney’s Fees Awards Act of 1976,
42 U.S.C. § 1988 (1988).
In contrast to the panel majority, I find no basis for
the argument that Congress intended to limit attorney’s
fees to those intervenors who sought to vindicate their
"own" civil rights claims. And even if the legislative
history were to reveal reeds from which a court might
weave such an interpretation, the final production would
run contrary to the underlying purpose of section 1988.
Complex litigation, such as the case at hand, requires that
the allocation of attorneys’ fees be approached with
flexibility, if we are to adhere to Congress’ goal of provid-
ing incentives to those who act as private attorneys
general to aid in the eradication of civil rights violations.
See S. Rep. No. 1011, 94th Cong., 2d Sess. 2-3, reprinted
in 1976 U.S. Code Cong. & Admin. News 5908, 5909-
5911; Waterbury, 605 F.2d at 576. To shift the focus of
section 1988, as the panel majority does, from crafting an
equitable remedy to the delineation of which rights
belong to whom, distracts us from the goal Congress has
set before us. As we said in Waterbury, "The precise
remedy does not follow logically from the determination
of liability, but rather reflects a careful reconciliation of
the interests of the many affected members of the com-
munity and a choice among a wide range of possibilities."
605 F.2d at 576. Thus, unlike the panel majority, I cannot
simply allude to Judge Ward’s opinion and assume
familiarity with it because doing so tends to underem-
phasize the essential findings in the case. Rather, I think
a
A-38
it important to state precisely who the intervenors are,
what they did, and why Judge Ward concluded that he
was bound to award them attorneys’ fees by our Water-
bury decision.
This complaint challenged the entire city’s child
care system on the basis that it: (1) operated to dis-
criminate against children based on race and religion; (2)
amounted to the establishment of religion; and, (3) un-
duly burdened the free exercise rights of Protestant
children, as well as (4) denied black Protestant children
equal access to child care services. Wilder, 725 F. Supp.
at 1327. The intervenors are a group of nineteen private
child care agencies which were properly permitted to
intervene in this action; they represent a broad spectrum
of foster care clinicians and administrators who together
care for approximately 4600 children. /d. at 1327 & n.3
In the sixteen years of litigation involved in this case up
to Judge Ward’s decision in the district court, the inter-
venors did the following:
1. They strongly objected to the draft Stipulation of
Settlement on the part of the plaintiff class and the city
defendants on the basis not just that the proposed settle-
ment was administratively unworkable but that it failed
to protect the best interests of the children and uncon-
Stitutionally discriminated against children whose
parents exercised a religious preference in child care. /d.
at 1328.
2. The objections the intervenors presented were
“comprehensive” and suppcrted by detailed affidavits
providing "important background and insight." /d.
3. The intervenors "played an integral role" con-
cerning the content of the proposed Stipulation, and
“sparked primarily" by their criticisms and suggestions,
A-39
the parties resolved the numerous legal and child care
issues involved. Jd.
4. The final version of the Stipulation of Settlement,
as supported by the intervenors, was ultimately approved
by the court in Wilder v. Bernstein, 645 F. Supp. 1292
(S.D.N.Y. 1986), aff'd, 848 F.2d 1338 (2d Cir. 1988). In
the district court’s decision approving the settlement, the
court noted that the intervenor’s "direct participation in
the New York City foster care system, and their ongoing
contact with the children in care, give them the ability
and incentive to comment authoritatively on the likely
impact of the settlement on agency administrators and
clinicians and on the children they serve." Wilder, 645 F.
Supp. at 1350. In Judge Ward’s later decision awarding
the intervenor’s attorneys’ fees, presently on appeal, he
said that "[t]he intervenors worked to promote a more
viable solution to the problems presented by the foster
care system in New York, while at the same time assuring
that the best interests of all children in the system were
taken into account .... they played an essential role in
forging the final version of the Stipulation which was
acceptable to all the parties except the sectarian agencies
.. Wilder, 725 F. Supp. at 1329.
The above being true, it seems to me that this case
fits squarely within our Waterbury case where we said that
‘[a]n intervenor is certainly a party," 605 F.2d at 576,! and
that even though a consent decree was involved the
intervenors could be considered a prevailing party be-
cause they succeeded in opposing a plan "which unfairly
1
This point has been referred to favorably by other courts. E.g.,
Seattle School Dist. No. 1 v. State of Washington, 633 F.2d 1338,
1349-50 (9th Cir. 1980).
Although the fee-shifting statute in Waterbury was not 42 U.S.C.
§ 1988 but, rather, section 718 of the Emergency School Aid Act of
1972, 20 U.S.C. § 1617 (repealed 1979), the pertinent language in
(Footnote Continued)
A-40
burdened their constituency." /d. at 577.2 As the remedy
ultimately adopted in Waterbury , a school desegregation
case, "bore a substantial resemblance to the plan inter-
venors supported (indeed, it took the same general
approach),”" the court concluded that the intervenors
“c{a]me within the meaning of the term ‘prevailing
party." Jd. The Waterbury court, per Judge Mansfield,
refused to interpret the term "prevailing party" in a
fashion that would "severely limit the availability of
attorneys’ fees to parties whose participation contributed
importantly to the creation of remedies in these cases."
Id. at 576. This is exactly what the intervenors in this case
did; in contributing importantly to the creation of the
remedies approved by the district court and upheld in our
court, they came within the meaning of the term "prevail-
ing party."
The panel majority seeks to distinguish Waterbury
by saying that there "many members of the intervenor
group’s constituency in that case asserted .. . a civil rights
interest" and that "the intervenors there were seeking to
vindicate their own civil rights, not the rights of others."
Opinion, p. 9. So too, however, in this case the intervenor
group’s constituency included the plaintiff class of
children asserting a civil rights interest. The intervenors
in Waterbury were not themselves school children,
though some of them were Hispanic. Here, too, in the
foster care context, the intervenors were not children but
were agencies -- clinicians and administrators who care
for thousands of children. As such, the intervenors had
duties running to the children that made them stand in
loco parentis, duties that would be implied by law if they
were not already set forth in the New York Statutes. N.Y.
(Footnote Continued)
the two statutes is "virtually identical.” Waterbury, 605 F.2d at 576.
There is therefore no reason not to apply the Waterbury court’s
analysis to a situation arising under section 1988.
A-41
Soc. Serv. Law §§ 383-384 (McKinney 1983 & Supp.
1991). This case cannot be distinguished from Water-
bury.
Furthermore, Waterbury cannot be overruled sub
stlentio by a panel majority. Nor should it be overruled.3
The quotations from the House and Senate Reports used
to bolster the position that intervenors who do not assert
their own civil rights are not entitled to attorneys’ fees
seem to me, with all due respect, to have no bearing
whatsoever on the question at hand. These statements
were not offered in the context of whether intervenors
must be asserting their own civil rights but were stated in
the much more general context of whether fees should
be awarded to prevailing parties generally.
I agree, in short, with the commentator who Said,
It may be argued that th[e] requirement that
parties must raise a civil rights claim to recover
attorneys’ fees should further be limited to situa-
tions where a party claims its own legal rights are
violated, or will be violated by the defendant’s
acts or the plaintiff's proposed remedy. This
limitation, however, seems unnecessary and
even counter-productive. First, it has been ar-
gued here that certain intervenors should be
encouraged to join civil rights actions. Second,
the concerns that this limitation evince are al-
ready protected by the rules which allow
Waterbury has been favorably treated in a number of other
decisions and criticized in none. E.g, Frazier v. Merit Systems
Protection Bd., 672 F.2d 150, 168 (D.C. Cir. 1982); Seattle School
Dist. No. 1 v. State of Washington, 633 F.2d 1338, 1349-50 (9th Cir.
1980). Commentators, as well, have noted the significance of
Waterbury. See Rhode, Class Conflicts in Class Actions, 34 Stan. L.
Rev. 1183, 1229 (1982).
intervenors to join cases. If the suggested limita-
tion were imposed, it would exclude some
desirable parties and would duplicate, in effect,
the rules limiting intervention. Not allowing fees
to such parties would operate only against those
financially unable to join a suit while the limits
on intervention would operate equally on all
parties.
Tamanaha, The Cost of Preserving Rights: Attorneys’ Fee
Awards and Intervenors in Civil Rights Litigation, 19 Harv.
C.R.-C.L. L. Rev. 109, 143 n.130 (1984) (emphasis
added). But reading such a limitation into section 1988,
as the majority panel does, has implications that go
beyond inefficiency and inequity. By threatening to
remove suits involving jus tertii, associational standing,
and overbreadth from the purview of section 1988, this
reading displays an insensitivity to the economic incen-
tives Congress wished to foster and weakens the tools
available to those who seek to eradicate civil rights viola-
tions. In addition, a narrow interpretation of section
1988 may have a ripple effect, weakening the more than
100 other fee-shifting statutes in the United States Code,
which courts interpret by drawing upon the principles
and case law of section 1988. See, e.g., Pennsylvania v.
Delaware Valley Citizens’ Council for Clean Air, 478 U.S.
546, 559-60 (1986); Brand, The Second Front in the Fight
for Civil Rights: The Supreme Court, Congress, and
Statutory Fees, 69 Tex. L. Rev. 291, 306 (1990).
There is no question that, by its terms, section 1988
only authorizes fee-shifting for those parties seeking to
enforce civil rights. Indeed, the court below recognized
this principle. See Wilder, 725 F. Supp. at 1331 ("It is clear
that the purpose of the fee-shifting statute is to en-
courage the vindication of civil rights, and parties who
Oe
A-43
are not involved in furthering such purposes should not
be entitled to benefit from the statute."). The only
proper question, then, is whether intervenors sought to
enforce civil rights. The district court found that they
did:
The intervenors did more than just advance their
own self-interests. Their participation furthered
the purposes of the civil rights statutes by
facilitating the formation of a settlement which
would safeguard the constitutional rights of the
children in the City’s care, while assuring that the
child care system itself would remain focused on
the overall best interests of the children entitled
to the protection of the civil rights laws.
Furthermore, the intervenors consistently and
forcefully articulated objections addressed to the
constitutional and civil rights issues in this litiga-
tion. Their efforts helped to vindicate the civil
rights of the children and families in the foster
care system which they served, not just their own
self interests.
Id. at 1331-32. See also Wilder, 645 F. Supp. 1292, 1303-
04, 1350 (S.D.N.Y. 1986), aff'd, 848 F.2d 1338 (2d Cir.
1988). There is ample support for this finding in the
record; therefore, we should affirm the district court
decision.
I eschew the narrow construction of the term
"prevailing party" the majority gives the congressional
Statute which, after all, in the words of the Senate Report,
was "an appropriate response" to Alyeska Pipeline Service
Co. v. Wilderness Society, 421 U.S. 240 (1975), S. Rep. No.
1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S. Code
Cong. & Admin. News 5908, 5912. Congress sought to
return to the teaching of Newman v. Piggie Park
Enterpnises, Inc., 390 U.S. 400 (1968), that a party who
enforced a civil rights statute "should ordinarily recover
an attorney’s fee unless special circumstances would
render such an award unjust." Jd. at 402; see also Note,
Promoting the Vindication of Civil Rights through the
Attorney’s Fees Awards Act, 80 Colum. L. Rev. 346, 353
(1980). The intervenors here were such a party. There
is no way in which it can be suggested that to grant them
attorneys’ fees would be "unjust." There is every reason
to follow our precedent -- the Waterbury case.
,
A-45
Decision and Judgment of the United States District
Court for the Southern District of New York, Dated
December 4, 1989
Shirley WILDER, et al.,
Plaintiffs
Blanche BERNSTEIN, individually and as
Administrator of the New York City Human Resources
Administration, et al.,
Defendants,
and
Abbott House, et al.,
Intervenors.
No. 78 Civ. 957 (RJW).
United States District Court
S.D. New York.
Dec. 4, 1989.
Intervenors in civil rights action sought recovery of
attorney fees. The District Court, Robert J. Ward, J.,
held that intervenors were prevailing parties entitled to
recover attorney fees.
Ordered accordingly.
Polier, Tulin, Clark & Zalk (Stephen Wise Tulin, of
counsel), Webster & Sheffield (Donald J. Cohn, Seth M.
Lahn, Joseph M. Heppt, Sharon A. Lewis, of counsel),
New York City, for intervenors.
A-46
Peter L. Zimroth, Corp. Counsel of the City of New
York, Norma Kerlin, Asst. Corp. Counsel, New York
City, for defendant New York City.
OPINION
ROBERT J. WARD, District Judge.
Once again the Court is asked to decide a controver-
sy stemming from the litigation concerning the provision
of child care services by New York City (the "City") to
those children requiring placement in institutions and
foster homes. The litigation, which at its core revolves
around the best interests of the children in the City’s
child care system, has occupied the courts of this Circuit
for the past sixteen years, generating four published
opinions prior to this decision.! The main protagonists
in this ongoing saga are (1) plaintiffs, who represent a
class of black Protestant children in need of child care
services out of their home, (2) the City and the municipal
officials responsible for the City’s child care system (col-
lectively the "City defendants"), (3) a group of ninet~ n
private child care agencies which intervened in this ac-
tion (the "intervenors") and (4) a group of administrators
of private, religiously affiliated, child care agencies (the
1
These decisions are: Wilder v. Sugarman, 385 F.Supp. 1013
(S.D.N.Y. 1974) (per curiam) (three-judge panel upheld facial
constitutionality of New York State’s constitutional and Statutory
provisions authorizing religious matching for publicly-funded
foster care of children); Wilder v. Bernstein, 499 F. Supp. 980
(S.D.N.Y. 1980) (plaintiff class certification granted, remaining
facial attacks on the validity of New York statutes dismissed);
Wilder v. Bernstein, 645 F. Supp. 1292 (S.D.N.Y. 1986) (approval of
stipulation of settlement) (hereinafter "Wilder IIT"), aff'd, 848 F.2d
1338 (2d Cir. 1988) (approval of consent decree upheld on appeal
taken by sectarian agencies) (hereinafter "Wilder / Vv’).
The history of this litigation has been detailed in Wilder III and
Wilder IV, familiarity with which is presumed, and the Court will not
undertake an unnecessary repetition of this chronology.
ee
A-47
"sectarian agencies"). This decision will revisit the his-
tory of this litigation in the context of the intervenors’
motion for an award of attorneys’ fees and costs against
the City, pursuant to 42 U.S.C. § 1988. The City has
cross-moved to dismiss the intervenors’ application for
fees.2 For the reasons that follow, the intervenors’ mo-
tion is granted and the City’s cross-motion is denied.
BACKGROUND
Plaintiffs challenged the City’s child care system on
several constitutional grounds, their final complaint al-
leging, in essence, that the child care system (1) operated
2
A host of motions were initially filed with the Court regarding the
entitlement of various parties to attorneys’ fees. Plaintiffs filed
motions for attorneys’ fees and costs pursuant to 42 U.S.C. § 1988
against the City defendants, the sectarian agencies, the intervenors
and Lester Kaufman, individually, and as Executive Director of
Ohel Children’s Home ("Kaufman"). In response, the intervenors
filed a motion for sauctions against plaintiffs, pursuant to Rule 11,
Fed.R.Civ.P. The intervenors also filed their own motion for
attorneys’ fees and costs against the City. The City then
cross-moved to dismiss the intervenors’ application.
On or about June 26, 1989, the City defendants submitted an offer
of judgment to plaintiffs, pursuant to Rule 68, Fed.R.Civ.P., in the
amount of $1,775,000.00, covering all of plaintiffs’ claims for
attorneys’ fees and costs, except those incurred in the appeals from
this Court’s decision approving the Stipulation. Plaintiffs accepted
the offer of judgment on or about June 27, 1989. A conference was
held befere the Court on July 21, 1989 to discuss the remaining
motions. Pursuant to stipulation, so ordered August 9, 1989,
plaintiffs withdrew their motions for attorneys’ fees and costs
against the intervenors and the sectarian agencies, and the
intervenors withdrew their Rule 11 motion against plaintiffs.
Plaintiffs’ application for attorneys’ fees against Kaufman was
withdrawn with prejudice pursuant to stipulation filed in April
1989. A subsequent motion by plaintiffs for attorneys’ fees and
costs against Kaufman, pursuant to rule 37(b), was also withdrawn
with prejudice by stipulation filed in June 1989. Only the
intervenors’ motion for fees and the City’s cross-motion to dismiss
remain.
ill
A-48
to discriminate against children based on race and
religion, (2) amounted to the establishment of religion
and, (3) unduly burdened the free exercise rights of
Protestant children. They also claimed that defendants
had denied the plaintiff class equal access to child care
services in violation of Title VI of the Civil Rights Act of
1964, 42 U.S.C. § 2000d, and applicable state law.
The intervenors represent a broad spectrum of
foster care clinicians and administrators who together
care for approximately 4,600 children.3 A number of the
intervenors were originally named as defendants in the
Wilder litigation, but, by 1978, these defendants had all
been dismissed from the case, many with prejudice.
Shortly before trial was to begin in August 1983,
plaintiffs and the City defendants renewed their efforts
at settlement. These negotiations proved fruitful and
resulted in plaintiffs and the City defendants fashioning
a draft stipulation of settlement. In or about January
1984, fourteen of the eventual intervenors, plus anumber
of other agencies, wrote the City expressing strong objec-
tions to the draft stipulation of settlement. The
intervenors articulated their concerns with the draft
stipulation to the Court and to the parties throughout the
winter and early spring of 1984.
The nineteen not-for-profit child care agencies which comprise the
intervenors are: Abott House, Berkshire Farm Center & Services
for Children, Brooklyn Home for Children, Brookwood Child Care,
The Children’s Aid society, The Children’s Village, Episcopal
Mission Society, Green Chimneys Children’s Service, Heartsease
Home, Inwood House, Lakeside School, Louise Wise Services,
Lutheran Community Services, Puerto Rican Family Association,
St. Christopher-Jennie Claikson Child Care Services, Sheltering
Arms Children’s Service, Society for Seamen’s Children,
Spence-Chapin Services to Children, and Talbot Perkins Children’s
Services.
i i ia
A-49
In April 1984, plaintiffs and the City defendants
presented a proposed stipulation of settlement to the
Court for approval. The Court then directed that notice
of the proposed settlement be given to members of the
plaintiff class. The intervenors, whose concerns with the
draft had not been addressed in the proposed stipulation,
continued to press their objections. They maintained
that the proposed stipulation was fundamentally flawed
because, inter alia, (1) it failed to protect the best interest
of the children, (2) it unconstitutionally discriminated
against children whose parents exercised a religious
preference in child care, and (3) it failed to take into
account the complex problems presented by the place-
ment of children and the practical limitations inherent in
the child care system. The intervenors were granted
leave to intervene to oppose the proposed stipulation by
order of the Court filed June 15, 1984.
The objections the intervenors presented to the
Court concerning the proposed stipulation were com-
prehensive, and were supported by detailed affidavits
from child care professionals. The affidavits and sup-
porting materials presented by the intervenors provided
the Court and the parties with important background and
insight on the clinical and administrative realities con-
fronting the child care system. Negotiations concerning
the content of the proposed stipulation, in which the
intervenors played an integral role, continued
throughout the summer. Beginning on August 6, 1984,
the Court commenced a hearing on the fairness,
reasonableness and adequacy of the settlement. As this
Court noted in Wilder III, sparked primarily by the
criticisms and suggestions of the intervenors, the parties
embarked on a series of meetings in open court to at-
tempt to resolve the numerous legal and child care issues
involved with the proposed stipulation of settlement.
A-50
The intervenors reached agreement on certain general
topics with plaintiffs and the City defendants, and sug-
gested specific changes that could be made in the original
settlement agreement to resolve or mitigate many of the
remaining problems they had identified in their original
objections. The parties continued to negotiate around
the various concrete proposals offered by the inter-
venors. These efforts proceeded throughout the fall of
1984 and, on January 2, 1985, a second proposed stipula-
tion of settlement, supported by the intervenors, was
submitted to the Court. The finalized version of the
stipulation of settlement was ultimately approved by the
Court in Wilder III, over the opposition of the sectarian
agencies.
The significant impact the intervenors had on the
ultimate Stipulation was detailed throughout the Court’s
decision in Wilder I/I, For example, it was noted that:
The Intervenors’ original comments proved ex-
tremely valuable to the Court, not only because
they offered a fresh perspective on the day-to-
day operation of New York City’s child care
system from the agency clinician’s point of view
.., but because their criticism of the original
settlement proposal was concrete, comprehen-
sive and constructive.
Wilder I11, 645 F.Supp. at 1346.
The intervening agencies, as non-parties vis-a-vis
the underlying constitutional claims in the law-
suit, are the sole participants in this litigation
who have been in a position to address freely and
undistractedly the child care concerns that were
prompted by the original settlement proposal.
At the same time, their direct participation in the
New York City foster care system, and their on-
A-51
going contact with the childten in care, give them
the ability and incentive to comment authorita-
tively on the likely impact of the settlement on
agency administrators and clinicians and on the
children they serve. The Court benefitted im-
measurably from the voluntary agency’s
perspective. The drafters of the original settle-
ment undeniably benefitted from the
intervenors’ constructive criticism and sugges-
tions.
Id. at 1350.
More specifically, the Court found the contribu-
tions made by the Intervenors were essential to the
creation of the final Stipulation.
The settlement originally presented to the Court
. was Clearly problematic... The clinical con-
cerns voiced by the intervenors and others raised
serious questions in the Court’s mind about both
the extent to which child care issues had been
fully explored ... and the extent to which the
voluntary agencies had been allowed to par-
ticipate meaningfully in the initial negotiations.
The original settlement proposal therefore was
unacceptable on several levels....
The general outlines of the stipulation now
before the court do not differ greatly from those
of the original settlement.... Within this broad
outline, however, the Stipulation reflects
numerous changes--some minor, some substan-
tial--that address virtually all of the concerns
raised by the intervenors and other child care
administrators ... who commented on the
original settlement.
Id. at 1347-48.
The intervenors worked to promote a more viable
solution to the problems presented by the foster care
system in New York, while at the same time assuring that
the best interests of all children in the system were taken
into account. They succeeded in forestalling entry of the
proposed stipulation negotiated by plaintiffs and the City
which did not satisfy their objections, and prevailed,
through negotiations, in their proposals to modify the
settlement to ameliorate the constitutional, clinical, and
practical stumbling blocks they had identified in the
original stipulation.* While the settlement was obviously
the result of more than just the work of the intervenors,
they played an essential role in forging the final version
of the Stipulation which was acceptable to all the parties
except the sectarian agencies, and approved by this Court
and the Second Circuit.
Intervenors now seek to recover attorneys’ fees and
costs of their work in crafting and enforcing the Stipula-
tion.
DISCUSSION
Pursuant to the Civil Rights Attorneys’ Fees
Awards Act of 1976, a district court, in its discretion, may
award attorneys’ fees and costs to the prevailing party in
any action or proceeding to enforce certain civil rights
acts. 42 U.S.C. § 1988.° The parties do not dispute that
section 1988 applies to this litigation.
Wilder III summarized twenty clinical concerns raised by
intervenors to the first proposed settlement, and listed ten
perticularly noteworthy modifications of the settlement draft made
to alleviate these concerns. Wilder III at 1346-49. In addition,
many other points pressed by the intervenors resulted in
modification of the proposed stipulation. See Affidavit of Stephen
Wise Tulin, filed on March 20, 1989 at 4 24.
Section 1988 states, in pertinent >art, that:
(Footnote Continued)
The statutory language of section 1988 creates a
presumption in favor of fee awards, DiFilippo v. Morizio,
759 F.2d 231, 234 (2d Cir. 1985), and a prevailing party
is ordinarily entitled to recover fees and costs unless
there are special circumstances which would render such
an award unjust. See Newman v. Piggie Park Enterprises,
Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263
(1968).
It is clear that a party may prevail for purposes of
section 1988 through settlement. Maher v. Gagne, 448
U.S. 122, 129, 100S.Ct. 2570, 2574, 65 L.Ed.2d 653 (1980)
(consent decree which made no determination that the
defendant had violated the plaintiffs constitutional
rights was nonetheless sufficient to form the basis for a
finding that the plaintiff was a prevailing party entitled to
attorneys’ fees). As noted in Maher v. Gagne, supra, 448
U.S. at 129, 100 S.Ct. at 2574, the Senate Report accom-
panying section 1988 stated that "for purposes of the
award of counsel fees, parties may be considered to have
prevailed when they vindicate rights through a consent
judgment or without formally obtaining relief." Sen.
Rep. No. 1011, 94th Cong., 2d Sees. 5 (1976), reprinted
(Footnote Continued)
In any action or proceeding to enforce a provision of sections
1981, 1982, 1983, 1985, and 1986 of this title, title IX Public Law
92-318, or title VI of the Civil Rights Act of 1964, 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.
Section 1988 has been interpreted in the same manner as the other
fee-shifting provisions for particular civil rights claims which
contain the “prevailing party” language. See Independent
Federation of Flight Attendants v. Zipes, US. __, 109 S.Ct.
2732, 2735 n.2, 105 L.Ed.2d 639 (1989).
A-54
in 1976 U.S.Code Cong. & Admin. News, 5908, 5912.
Indeed, "congress made clear its concern that civil rights
plaintiffs not be penalized for ‘helping to lessen the
docket congestion’ by settling cases out of court." Evans
v. Jeff D., 475 U.S. 717, 733, 106 S.Ct. 1531, 1540, 89
L.Ed.2d 747 (1986) (holding that section 1988 does not
bar the waiver of attorneys’ fees as part of a settlement)
(quoting Marek v. Chesny, 473 U.S. 1, 10, 105 S.Ct. 3012,
3017, 87 L.Ed.2d 1 (1985)).
The Supreme Court has recently explained that a
party meets the threshold requirement necessary to be
considered a prevailing party under section 1988 if he or
she succeeds on "any significant issue in litigation which
achieves some of the benefit the parties sought in bring-
ing suit." Texas States Teachers Assn. v. Garland
Independent School District, __ U.S.__, 109 S.Ct. 1486,
1493, 103 L.Ed.2d 866 (1989) (rejecting the "central
issue" test for determining an award of attorneys’ fees).
See also, Hensley v. Eckerhart, 461 U.S. 424, 433, 103
St.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983).
The touchstone of the prevailing party in-
quiry must be the material alteration of the legal
relationship of the parties in a manner which
Congress sought to promote in the fee statute.
Texas Staies Teachers Assoc. v. Garland Independent
School District, supra, 109 S.Ct. at 1493.
The nature of much civil rights litigation does not
lend itself to complete success by plaintiffs or defendants,
and the input of intervenors may be necessary for a just
remedy. While most of the cases dealing with the
Statutory award of attorneys’ fees pursuant to section
1988 are concerned with awards to plaintiffs, an inter-
venor may also be a prevailing party entitled to fees and
costs. E.g. United States v. Board of Education of Water-
bury, 605 F.2d 573, 576 (2d Cir. 1979).®
In Waterbury, an action concerning school
desegregation, an organization comprised of parents and
community leaders, along with several individuals, were
allowed to intervene in the lawsuit after the defendants
had been found liable, a consent decree had been filed
and an initial desegregation plan was proposed by the
defendants. Intervention was granted for the limited
purpose of allowing the intervenors to protect the inter-
ests of the Hispanic community and to participate in the
development of remedial measures under the consent
decree. Jd. at 574. Nonetheless, the intervenors were
found to be prevailing parties, entitled to a fee award. Jd.
at S77.
The Second Circuit described the circumstances
surrounding the intervention in Waterbury as follows:
Intervenors entered this lawsuit to oppose a plan
which unfairly burdened their constituency, and
which was not being opposed by the government.
In this they succeeded. They contested several
later proposals, and worked in support of a plan
which better served their valid interests. The
An examination of the legislative history of section 1988 readily
illustrates that Congress contemplated fee awards would be
available to intervenors in certain circumstances.
In the large majority of cases the party or parties seeking to
enforce such rights will be the plaintiffs and/or plaintiff
intervenors. However, in the procedural posture of some cases
the parties seeking to enforce such rights may be the defendants
and/or defendant intervenors.
S.Rep. No. 1011, 94th Cong., 2d Sess. 4, reprinted in 1976 U.S.Code
Cong. & Admin.News, 5908, 5912 n. 4.
A-56
remedy ultimately adopted bore a substantial
resemblance to the plan intervenors supported
(indeed it took the same general approach)... In
light of the success of intervenors in these
respects, we conclude that they come within the
meaning of the term "prevailing party."
Id.The Second Circuit emphasized the importance of
allowing intervenors to recover attorneys’ fees when they
further the purposes of the civil rights statutes by noting
that:
[w]ere we to interpret "prevailing party" as mean-
ing only the party which established the liability
of the defendants, or the party which proposed
the plan ultimately adopted, we would severely
limit the availability of attorneys’ fees to parties
whose participation contributed importantly to the
creation of remedies in these cases. We would
discourage activity essential to the realization of
the congressional purpose of combating dis-
crimination.
Id. at 576-77. (Emphasis added). See also, Plummer v.
Chemical Bank, 592 F.Supp. 1168, 1171-72 (S.D.N.Y.
1984) (intervenors who took active role in all facets of
process, including participation in hearings in which they
opposed a proposed settlement, and whose efforts ul-
timately resulted in a consent decree which represented
a fairer document for the entire class, were prevailing
parties for fee award); Morgan v. McDonough, 511
F.Supp. 408, 413-14 (D.C. Mass. 1981) (intervening or-
ganization, which sought to vindicate the civil rights of its
clients and made a significant contribution to the for-
mulation of a workable remedy, was a prevailing party
entitled to attorneys’ fees.)
The City does not dispute that the intervenors made
important contributions to the final Stipulation, as clear-
ly documented in Wilder III, but claim they are not
entitled to fees because they never alleged a violation of
their own constitutional rights. The City charges that the
intervenors joined the litigation only to promote their
own self-interests in eliminating paperwork, modifying
the system of ranking agencies, and protecting their con-
tractual rights with the City, and that these are not
interests which should be compensated under section
1988.
It is clear that the purpose of the fee-shifting statute
is to encourage the vindication of civil rights, and parties
who are not involved in furthering such purposes should
not be entitled to benefit from the statute. See Russo v.
New York, 672 F.2d 1014, 1022-23 (2d Cir.1982) (plaintiff
who lost on civil rights claim, but prevailed on similar
State law claim, was not entitled to attorneys’ fees under
section 1988); Gagne v. Enfield, 734 F.2d 902, 904 (2d Cir.
1984) (same).?
However, the City’s contentions concerning the
scope of the intervenors’ participation in the litigation
are not borne out by the record. The intervenors did
more than just advance their own self-interests. Their
participation furthered the purposes of the civil rights
Statutes by facilitating the formation of a settlement
which would safeguard the constitutional rights of the
7
Cf. Independent Federation of Flight Attendants v. Zipes, supra, 109
S.Ct. at 2737, n.4. In Zipes the Supreme Court held that attorneys’
fee may be assessed against a blameless intervenor who was not
found liable to plaintiff only if the intervenor’s action was frivolous,
unreasonable, or without foundation. /d. at 2736. In responding
to the dissent, the majority noted that this heightened standard for
the award of fees might not apply if the intervenor was an
intermeddler who did not intervene to protect his or her own
constitutional or statutory rights. Jd. at 2737, n. 4.
A-58
children in the City’s care, while assuring that the child
care system itself would remain foeused on the overall
best interests of the children entitled to the protection of
the civil rights laws. The contributions made by the inter-
venors were essential to the creation of a just and
workable remedy, exactly the type of activity sought to be
promoted by the civil rights statutes. See United States v.
Board of Education of Waterbury, supra, 605 F.2d at 577.
Furthermore, the intervenors consistently and for-
cefully articulated objections addressed to the
constitutional and civil rights issues in this litigation.
Their efforts helped to vindicate the civil rights of the
children and families in the foster care system which they
served, not just their own self interests. They succeeded
in obtaining modifications in the initial settlement
proposal on virtually every objection they raised, and
many of these modifications went directly to benefit the
children in the child care system. As a result of their
labor, a "material alteration of the legal relationship of
the parties in a manner which Congress sought to
promote," Texas State Teachers Assoc. v. Garland Inde-
pendent School District, supra, 109 S.Ct. at 1493, was
effectuated. Accordingly, the Court concludes that the
intervenors are prevailing parties under section 1988,
entitled to an award of attorneys’ fees and costs.®
8
A prevailing party is entitled to attorneys’ fees and costs unless
special circumstances exist to make such an award unjust. See
Newman v. Piggie Park Enterprises, Inc., supra, 390 U.S. at 402, 88
S.Ct. at 966. The City defendants assert that the acceptance by
plaintiffs of their offer of judgment includes compensation to
plaintiffs for costs associated with litigating against the intervenors
and, therefore, any further award to the intervenors from the City
would result in an impermissible windfall to the intervenors. This
argument is misguided. There is no indication that plaintiffs have
received compensation and the City for time spent litigating
against the intervenors. In any event, awarding a fair fee to the
intervenor will not result in their retaining an impermissible
windfall.
A-59
B. The Amount of the Fee Award:
The Supreme Court recently articulated the follow-
ing summary of the legal standards for determining the
amount of an appropriate fee award.
A reasonable attorney’s fee under § 1988 is one
calculated on the basis of rates and practices
prevailing in the relevant market, ie., "in line
with those [rates] prevailing in the community
for similar services by lawyers of reasonably com-
parable skill, experience, and reputation," [Blum
v. Stenson, 465 U.S. 886, 896, n. 11, 104 S.Ct.
1541, 1547, n.11, 79 L.Ed.2d 891 (1984), and one
that grants the successful civil rights plaintiff a
‘fully compensatory fee," [Hensley v. Eckerhart,
461 U.S. 424, 435, 103 S.Ct. 1933, 1940, 76
L.Ed.2d 40 (1983)], comparable to what is "tradi-
tional with attorneys compensated by a
fee-paying client." S.Rep. No. 94-1011, p. 6
(1976), U.S.Code Cong. & Admin. News 1976,
pp 5908, 5913.
Missoun v. Jenkins, __ US. ___, 109 S.Ct. 2463, 2470,
105 L.Ed.2d 229 (1989).
The framework for establishing the amount of an
attorneys’ fees award under the federal civil rights fee
shifting statute is found in the lodestar approach. Penn-
sylvania v. Delaware Valley Citizens’ Council for Clean Air,
478 U.S. 546, 563-66, 106 S.Ct. 3088, 3097-99, 92 L.Ed.2d
439 (1986); Hensley v. Eckerhart, supra, 461 U.S. at 433,
103 S.Ct. at 1939. The lodestar amount is calculated by
multiplying the number of hours reasonably expended on
the litigation by a reasonable hourly rate of compensa-
tion for each attorney involved. This calculation serves
as a useful starting point for determining the amount of
a reasonable fee, as it provides an objective basis on
A-60
which to make an initial estimate of the value of a
lawyer’s services. Hensley v. Eckerhart, supra, 461 U.S. at
433, 103 S.Ct. at 1939.
The ultimate amount of the fee must be determined
on the facts of each case, id. at 429, 103 S.Ct. at 1937, and
the lodestar amount may be adjusted based on such
factors as adequate documentation of hours spent,
reasonableness of hours expended, and reasonableness
of rate. See Carrero v. New York City Housing Authority,
685 F.Supp. 904, 906 (S.D.N.Y. 1988).? Once the ap-
plicant for a fee award has established the
reasonableness of the claimed rate and the number of
hours expended, the resulting lodestar figure is
presumed to be the reasonable fee to which counsel is
entitled. Pennsylvania v. Delaware Valley Citizens’ Coun-
cil for Clean Air, supra, 478 U.S. at 564, 106 S.Ct. at 30;
Blum v. Stenson, supra, 465 U.S. at 897, 104 S.Ct. at 15.
The intervenors seek (1) $416,052.50 in attorneys’
fees relating to the substance of this litigation and an
enhancement of this amount by a multiplier of 1.75 to
$728,091.88; (2) $103,677.50 in attorneys’ fees incurred
in pursuing the fee application ("Fees for Fees"); and (3)
$17,020.59 in costs. See Letter from Joseph M. Heppt
In calculating the lode star, the following factors may be considered
by the Court: (1) the time and labor required; (2) the novelty and
difficulty of the questions; (3) the skill requisite to perform the legal
service properly; (4) the preclusion of other employment by the
attorney due to acceptance of the case; (5) the customary fee; (6)
whether the fee is fixed or contingent; (7) time limitations imposed
by the client or the circumstances; (8) the amount of involved and
the results obtained; (9) the experience, reputation and ability of
the attorneys; (10) the "undesirability” of the case; (11) the nature
and length of the professional relationship with the client; and (12)
awards in similar cases. See Hensley v. Eckerhart, supra, 461 U.S.
at 430, n. 3, 103 S.Ct. at 1938, n. 3; United States Football League v.
National Football League, 887 F.2d 408 (2d ' ir. 1989).
A-61
dated November 13, 1989, filed November 27, 1989.10
The City objects to this request on a number of grounds.
First, the City argues that the intervenors have
failed to supply contemporaneous time records and
therefore are not entitled to recover attorneys’ fees.
- ~All applications for attorney’s fees, whether sub-
mitted by profit-making or non-profit lawyers,
for any work done after the date of this opinion
[June 15, 1983] should normally be disallowed
Intervenors indicate that their total fee request amounts to
$810,108.50. The City, however, maintains that if the intervenors
were to receive full compensation for all the time they claim plus
a multiplier of 1.75, the total fee request would be $834,756.61.
Affidavit of Norma Kerlin, filed November 17, 1989 at 9 3,n.1. The
Court’s own calculations, based on the latest figures presented in
the intervenors’ November 13, 1989 letter, indicate that the total
fee request, exclusive of costs, amounts to $831,-769.38.
This sum was calculated as follows:
1. Opposition to the proposed stipulation and
negotiating the final stipulation: $350,740.00
2. Defense of the Stipulation on appeal: $28,403.75
3. Enforcement of the Stipulation, including
Opposition to the initial City RFP: $ 36,908.75
Total (excluding Fees for Fees) $416,052.50
Total (excluding Fees for Fe~s) enhanced by a
multiplier of 1.75: $728,091.88
5. Fees for Fees:
(a)Up to March 17, 1989: $68,872.50
(b)From March 17, 1989 to
November 13, 1989: $34,805,00
$103,677.50
Total Fee Request: $831,769.38
A-62
unless accompanied by contemporaneous time
records indicating, for each attorney, the date,
the hours expended, and the nature of the work
done.
New York State Association for Retarded Children, Inc. v.
Carey, 711 F.2d 1136, 1154 (2d Cir. 1983). Contem-
poraneous time records are necessary so that the Court
is not faced with an impossible task when asked to deter-
mine an appropriate fee amount, and lawyers are not
required to expend even more time reconstructing the
past in assembling the fee application. /d. at 1147-48.
The burden to present such records to the Court rests
squarely on the party requesting remuneration. Hensley
v. Eckerhart, supra, 461 U.S. at 437, 103 S.Ct. at 19;
Carrero v. New York City Housing Authonity, s‘tpra, 685
F.Supp. at 909.
Intervenors submitted verbatim transcriptions of
the daily entries made in the diaries of every attorney,
paralegal and summer associate who worked on this case.
Exhibit C annexed to Affidavit of Donald J. Cohn, filed
September 15, 1989; Exhibit 7 annexed to Affidavit of
Stephen Wise Tulin, filed September 1, 1989. The
original diaries have not been presented to the Court.!!
Lead counsel for the intervenors, Donald J. Cohn
("Cohn") and Stephen Wise Tulin ("Tulin"), have attested
to the fact that the documentation presented to the Court
11
The intervenors maintain that the original diary entries were not
produced because these diaries contain confidential billing
information regarding other clients. The intervenors claim they
offered to work out an arrangement whereby the City would have
been allowed access to the diaries in order to randomly check
entries, but the City did not respond to this suggestion. Affidavit
of Donald J. Cohn, filed September 15, 1989 at 14. The intervenors
also state that they would have produced redacted versions of the
original diary entries if the City had agred to bear the cost of this
procedure. /d.
A-63
concerning the amount and the description of the time
spent by the intervenors’ attorneys consisted of the actual
entries as they appeared in the daily diaries of the in-
dividuals in question, not summaries or reconstructions
of these entries. Affidavit of Donald J. Cohn, filed Sep-
tember 15, 1989 at 49 5-7; Affidavit of Stephen Wise
Tulin, filed September 1, 1989 at 18. See also, Affidavit
of Joseph M. Heppt, filed September 1, 1989 at 9 7.
Based on these assurances, the Court concludes that the
intervenors have satisfied the requirement of producing
contemporaneous billing records. Cf. United States Foot-
ball League v. National Football League, 704 F.Supp. 474,
477 (S.D.N.Y.) (re-typed computer records satisfied con-
temporaneous time record requirement), aff'd, 887 F.2d
408, 415 (2d Cir. 1989).
Second, the City argues that the intervenors are not
entitled to enforce the Stipulation and, therefore, should
not be entitled to fees after December 19, 1985, when the
executed consent decree was filed with the Court. The
Court disagrees. The Stipulation, to which the inter-
venors are signatory parties, gives them the right to
ensure that those terms which affect their interests are
properly implemented. Paragraph 75 of the Stipulation
provides that plaintiffs shall exercise reasonable efforts
to ascertain whether voluntary compliance can be ob-
tained prior to seeking judicial redress for alleged
noncompliance by defendants with the terms of the
Stipulation. This provision, contrary to the City’s asser-
tions, does not exclude the intervenors from enforcing
the Stipulation. Accordingly, the intervenors’ claim for
fees did not terminate upon filing the Stipulation with the
Court.
Third, the City contends that it is not liable for any
attorneys’ fees incurred by the intervenors in defending
the Stipulation on appeal. On this point, the Court
A-64
agrees. The appeal was filed solely by the sectarian
agencies. The Court does not believe it would be
reasonable to require the City, a signatory party to the
Stipulation, to be responsible for any of the fees ex-
pended in defending the Stipulation against appellate
challenge by parties over whom the City had no control.
Accordingly, the $28,403.75 in attorneys’ fees claimed by
the intervenors in connection with the appeal will be
excluded from the fee award.
Next, the City challenges the hourly rates sought by
intervenors. The intervenors have requested hourly
rates which are equivalent to the actual rates billed by
their counsel to paying clients during the relevant time
periods. Nonetheless, the City challenges these rates as
excessive. In determining the elements of reasonable
attorneys’ fees, courts have consistently looked to the
marketplace as a guide, Missoun v. Jenkins, supra, 109
S.Ct. at 2470, and in determining whether the requested
rates fall within the prevailing market rates, "rates
charged in private representations may afford relevant
comparisons." Blum v. Stenson, supra, 465 U.S. at 896, n.
11, 104 S.Ct. at 1547, n. 11.
The intervenors are entitled to a reasonable hourly
rate calculated in accordance with the prevailing
marketplace rates in the New York community for
lawyers of similar experience and reputation engaged in
similar litigation. The hourly rate actually charged to
clients by an attorney is a strong indication of the prevail-
ing market rate for that attorney’s work, which implicitly
accounts for the attorney’s skill and reputation in the
community. See Laffey v. Northwest Airlines, 746 F.2d 4,
24 (D.C. Cir. 1984) (rate actually charged by a prevailing
party’s counsel! in private practice will provide fair com-
pensation when used in determining a fee award as long
as the rate falls within the range of rates charged by other
A-65
firms in the community for similar work), cert. denied, 472
U.S. 1021, 105 S.Ct. 3488, 87 L.Ed.2d 622 (1985); Barcia
v. Sitkin, 683 F. Supp. 353, 357 (S.D.N.Y. 1988) (in deter-
mining reasonable hourly rate, court would look first to
any existing schedule of fees charged by counsel for
services performed in previous or other cases); Berkman
v. City of New York, No. 79-1813, slip op. at 9-10
(S.D.N.Y. November 25, 1985) (annexed as Appendix 1
to the City’s Memorandum of Law, filed August 11,
1989). Still, the rate an attorney charges paying clients is
not necessarily the rate which should be compensated
under section 1988, because the services required by
nonpaying clients may well differ from those required by
paying clients. See McCann v. Coughlin, 698 F.2d
112,130 (2d Cir. 1983).
The Court concludes that the hourly rates charged
by Polier, Tulin, Clark and Zalk for Tulin’s time in this
litigation are appropriate, as they fall well within the
range of hourly rates charged by partners at major law
firms in Manhattan during the relevant time periods. See
Exhibits K, L, O, P annexed to Affidavit of Marcia Robin-
son Lowry, filed February 24, 1989. These rates are
especially reasonable given the amount of experience
lead counsel for the intervenors brought to this case.!2
12
Tulin graduated from Yale Law School in 1954, cum laude, Order
of Coif, having been Comment Editor of the Yale Law Journal. He
clerked for the Honorable Edward Weinfeld of the Southern
District of New York in 1954 and 1955. He has been a member of
the bar for 34 years, and a partner in his current firm since 1961.
Among his other activities, Tulin has been involved in the legal
aspects of child care for more than twenty-five years, acting as
general counsel to Louise Wise Services since 1976, and has
assisted in drafting certain laws regarding family law and child care
in New York State. Affidavit of Stephen Wise Tulin, filed March
20, 1989 at 19 2-6. Cohn is a 1955 graduate of Yale Law School
where he was an editor of the Yale Law Journal. Upon graduation
(Footnote Continued)
The intervenors have sought to charge Cohn’s time at
higher rates than those charged for Tulin’s, presumably
based on the differences in their respective firm’s actual
charges, not the contributions made by each to the set-
tlement. The Court finds that the hourly rates requested
by Tulin most reasonably reflect the prevailing rate for
such work in the relevant legal community. Accordingly,
the Court will adjust Cohn’s hourly rates to the same level
as those rates requested by Tulin.!3
The City has also attacked as inflated the hourly
rates of Tracy Miller, Seth Lahn and S.A. Lewis, three
(Footnote Continued)
he entered private practice with the firm now known as Webster
& Sheffield, and has remained with that firm to the present time,
with the exception of several years spent in the United States
Attorney’s Office for the Southern District of New York. Webster
& Sheffield has represented the Children’s Aid Society and Cohn
asserts that he has been involved in several child care matters
during his time in private practice. Affidavit of Donald J. Cohn,
filed March 20, 1989 at 99 20-21.
The rates charged for Tulin’s time and the rates charged for Cohn’s
time are set forth below.
Tulin’s Cohn’s
Hourly Hourly
Xear Rate Rate
1984 200.00 250.00
1985 225.00 250.00
1986 225.00 360.00
1987 250.00 300.00
1988 250.00 325.00
1989 250.00 325.00 and
350.00
The value of Cohn’s time on the substance of this litigation, at rates
adjusted to comport with those charged by Tulin, is calculated
below. The rates and amount of compensation requested by the
intervenors appear in parentheses.
(Footnote Continued)
associates for Webster & Sheffield who were involved in
this litigation on behalf of the intervenors. The rates
charged by the intervenors for these individuals, as well
as the rates charged for the time expended by other
associates and paralegals for whom the intervenors seek
compensation, are also the actual rates intervenors’
counsel charged to paying clients.'4 These rates fall
within the parameters of the hourly rates charged by
‘imilar firms in New York City for associates and the
Court finds them to be reasonable. Accordingly, no
adjustment will be made to these rates.
Finally, the City contends that the intervenors have
not met their burden of showing that all the hours for
which they seek compensation are properly documented,
or that they exercised appropriate billing judgment in
incurring the number of hours expended on this litiga-
tion. The Supreme Court in Hensley has outlined certain
prerequisites for determining the amount of areasonable
fee.
The party seeking an award of fees should submit
evidence supporting the hours worked and the
rates claimed. Where the documentation of
(Footnote Continued)
Year Hours ne ona
1984 279.00 200.00 $5,800.00
(250.00) (69,750.00)
1985 15.25 225.00 3,431.25
(250.00) (3,812.50)
1986 17.50 225.00 3,937.50
(300.00) (5,250.00)
1
4
The City has not challenged the hourly rates charged by the other
associates, summer associates and paralegals included in the
intervenors’ fee request. Instead, the City maintains that none of
the time these additional individuals expended is compensable.
A-68
hours is inadequate, the district court may reduce
the award accordingly.
The district court also should exclude from this
initial fee calculation hours that were not
"reasonably expended." [citation omitted] Cases
may be overstaffed, and the skill and experience
of lawyers vary widely. Counsel for the prevail-
ing party should make a good-faith effort to
exclude from a fee request hours that are exces-
sive, redundant, or otherwise unnecessary, just as
a lawyer in a private practice is ethically
obligated to exclude such hours form his fee
submission. "In the private sector, ‘billing
judgment’ is an important consideration in fee
setting. It is no less important here. Hours that
are not properly billed to one’s client also are not
properly billed to one’s adversary pursuant to
Statutory authority." [citation omitted]
Hensley v. Eckerhart, supra 461 U.S. at 434, 103 S.Ct. at
1939 (emphasis in original).
The time records submitted by the intervenors con-
cerning work performed on the substance of this
litigation support, to a large extent, the amount of their
attorneys’ fees request. A great majority of the entries
are sufficiently documented and reflect reasonable ex-
penditures of time given the issues and the circumstances
surrounding negotiating and enforcing the Stipulation.
The City, however, has identified a number of entries in
the time records which fail adequately to describe the
nature of the work performed. These entries are too
vague to merit compensation. See United States Football
League v. National Football League, supra, 704 F Supp.
at 477 (vagueness in documentation of time records will
result in a 10% reduction in the fee award).
A-69
In addition, it is apparent upon inspection of the
time records that an excessive amount of time was spent
by the intervenors’ counsel participating in conferences
with clients and co-counsel. While the Court acknow-
ledges the logistical problems involved in serving
nineteen child care agency clients, not all of the con-
ferences between counsel should be borne as an expense
by the City. Similarly, the participation of both lead
counsel for the intervenors at the same time was essen-
tially duplicative, although much of this duplication was
mitigated by the division of work between counsel.!5 It
is proper to reduce a fee request when a party seeks
compensation for efforts which essentially duplicated
another attorney’s work. New York Association for
Retarded Children v. Carey, supra, 711 F.2d at 1146. Fur-
thermore, the intervenors initially adopted certain
positions in opposition to the proposed stipulation which
were later abandoned, including a challenge to this
Court’s authority to grant relief that would substantially
alter the child care system in New York City. See Ex-
hibits C, D & E, annexed to Affidavit of Marcia Robinson
Lowry, filed June 8, 1989. Time spent on these issues
does not merit compensation under section 1988. Ac-
cordingly, the Court believes it is appropriate to reduce
the amount of the fee request by twenty percent, from
$368,892.00!® to $295,113.60.
The intervenors argue that an enhancement of the
fee award by a multiplier of 1.75 is appropriate given
5
Tulin focused on the clinical aspects of the issues involved with the
child care system and Cohn concentrated on the constitutional
concerns raised by the Stipulation. See Affidavit of Donal J. Cohn,
filed March 20, 1989 at 4 20.
16
This figure represents the amount sought for work on this litigation
less the amount spent on defending the Stipulation on appeal and
adjusted to reflect the Court’s modification of Cohn’s billing rate.
A-70
their degree of success in opposing the initial proposed
Stipulation and negotiating the final Stipulation. The
Supreme Court has explained that an enhancement of a
fee award is proper only in certain rare and exceptional
cases. Pennsylvania v. Delaware Valley Citizens’ Council
for Clean Air, supra, 478 U.S. at 565, 106 S.Ct. at 3098;
Blum v. Stenson, supra 465 U.S. at 898-901, 104 S.Ct. at
1548-50. See also Krieger v. Gold Bond Building Products,
863 F.2d 1091, 1099 (2d Cir. 1988). The purpose of the
fee-shifting statute is not exactly to replicate a private fee
arrangement but to ensure that private parties will be
able to retain counsel to further the objectives of the civil
rights statutes. See Pennsylvania v. Delaware Valley
Citizens’ Council for Clean Air, supra, 478 US. at 565, 106
S.Ct. at 3098. The applicant bears the burden of over-
coming the presumption that the lodestar reflects a
reasonable fee award and establishing that an enhance-
ment is appropriate. See Solerv. G & U, Inc., 658 F. Supp.
1093, 1102-03 (S.D.N.Y. 1987).
In the context of this case, the Court does not view
an enhancement over and above the reasonable fee as-
sessed as warranted based on the success of the
intervenors. The intervenors, plaintiffs and the City all
ultimately collaborated to create the Stipulation ap-
proved by the Court. The significant contributions of the
intervenors to the creation of the Stipulation and the
expertise and skillful advocacy added to the litigation by
intervenors’ counsel were important ingredients in
achieving the results obtained, but are factors which have
been taken into consideration in arriving at the adjusted
fee award.
Intervenors’ counsel have indicated to the Court
that they had no retainer agreements with their clients
concerning this litigation, and argue that this created a
risk of loss which justifies an enhancement of the fee
award. Affidavit of Stephen Wise Tulin, filed September
1, 1989, at 17. In and of itself, however, a contingency
arrangement is not a sufficient basis for increasing the
amount of the fee award above the lodestar. Lewis v.
Coughlin, 801 F.2d 570, S75 (2d Cir. 1986). The risk of
loss does not merit an enhancements in this case, because
the intervenors have not even attempted to show that
without the possibility of enhancement competent coun-
sel might have refused to represent then, thereby denying
them effective access to the courts. See Friends of the
Earth v. Eastman Kodak Co., 834 F.2d 295, 298 (2d
Cir.1987).
One additional factor to be considered in determin-
ing whether to enhance a fee award is delay in payment,
because compensation received several years after ser-
vices were rendered is not equivalent to the same
compensation received at the time the services were
performed. Missouri v. Jenkins, supra, 109 S.Ct. at 2469.
The Court is mindful of the need to insure effective
access to judicial process and the importance of not
penalizing attorneys who choose to represent parties in
complex and lengthy litigation which furthers the pur-
poses of the civil rights laws. In the Court’s view,
however, the amount of the fee award granted inter-
venors provides then with full compensation.
Intervenors are also entitled to compensation for
the attorneys fees incurred in preparing the fee applica-
tion, see New York Association for Retarded Children v.
Carey, supra, 711 F.2d at 1148, but the amount of
remuneration sought for Fees for Fees in this case must
be reduced. Intervenors seek $103,677.50 for work per-
formed on the fee application, approximately twenty-five
percent of their total requested fee award. This figure
overstates the amount reasonably recoverable. The City
argues that the number of individuals involved in the fee
A-72
application was excessive, much of the work performed
by these individuals was duplicative, some of the time
attributed to the fee application against the City included
time spent litigating against the sectarian agencies and
plaintiffs regarding fees, and much of the time requested
is inadequately documented. The Court concurs with at
least some of these objections, noting, in particular, the
large number of individuals involved in preparing the
application, the time these individuals expended
familiarizing themselves with the case, and the inade-
quate descriptions accompanying certain of the time
entries. In addition, there were several discrepancies in
the figures asserted in the fee application materials
presented by the intervenors.!? Moreover, the inter-
venors seek considerable reimbursement for time
involved with purely administrative tasks that was billed
at relatively high rates. Accordingly, the Court believes
it is appropriate to reduce the amount sought in connec-
tion with the fee application by forty percent, from
$100,458.751!8 to $60,275.25.
The intervenors seek $17,020.59 in costs. They have
submitted summaries of the expenses they allegedly in-
curred in this case, but failed to submit detailed
documentation of the reimbursement request. See In re
Compare, Affidavit of Stephen Wise Tulin, filed September 1, 1989
at 1 2(b)2, with Affidavit of Donald J. Cohn, filed March 20, 1989
at 19 27-29 and Affidavit of Joseph M. Heppt, filed September 1,
1989 at 1S (all presented slightly different summaries of the
amounts sought by the intervenors). See also, Schedule C, annexed
to Letter from Joseph M. Heppt dated November 13, 1989, filed
November 27, 1989 (total value of Cohn’s time was slightly
miscalculated, and total value of additional time spent on fee
application was tallied incorrectly); Schedule B, annexed to id.
18
This figure represents the amount sought for the fee application,
adjusted to reflect Cohn’s modified billing rate.
A-73
Agent Orange Product Liability Litigation, 611 F.Supp,
1296, 1314 (E.D.N.Y.1985) affd in part, rev'd in part, 818
F.2d 226 (2d Cir. 1987). Indeed, for certain of the expen-
ditures, the intervenors admit that documentation is not
available, and no reconstruction of these expenses has
been undertaken. The disbursement incurred by a
prevailing party’s counsel may be compensated when
these expenditures add to the proceeding, and are not
part of the attorneys’ ordinary overhead. Carrero v. New
York City Housing Authority, supra, 685 F.Supp. at 909.
Due to the inadequate documentation concerning the
expenses, the Court is unable to ascertain precisely how
much of these costs are compensate. Accordingly, the
Court will likewise reduce the amount of compensable
disbursements by forty percent, from $17,020.59 to
$10,212.35.
CONCLUSION
The intervenors are prevailing parties under section
1988, entitled to an award of attorneys’ fees in the
amount of $355,338.85 and disbursements in the amount
of $10,212.35.
Settle order on notice.
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