Williams v. The Hanover Housing

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 96-1612

                  TASHIMA WILLIAMS, ET AL.,

                   Plaintiffs, Appellants,

                              v.

            THE HANOVER HOUSING AUTHORITY, ET AL.,

                    Defendants, Appellees.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. William G. Young, U.S. District Judge]
                                                                

                                         

                            Before

                     Stahl, Circuit Judge,
                                                     

         Aldrich and Campbell, Senior Circuit Judges.
                                                                

                                         

Judith Liben  with whom  Ernest Winsor,  Massachusetts Law  Reform
                                                  
Institute, were on briefs for appellant.
Bernard M. Ortwein for appellees.
                              

                                         

                         May 22, 1997
                                         


          CAMPBELL, Senior  Circuit Judge.  At  issue in this
                                                     

appeal  is whether the  plaintiffs in an  action they brought

under 42  U.S.C.   19831  are entitled to  recover attorneys'

fees under 42 U.S.C.   1988.2  In the course of plaintiffs'  

1983  action,  the  district court  determined  an underlying

state law  issue in plaintiffs'  favor.  Because  federal and

state  officials  thereupon  accepted  the  district  court's

interpretation        reversing   a   former   interpretation

challenged by  plaintiffs    the    1983 action  became moot.

The district  court denied attorneys' fees,  ruling that fees

under   1988   were improper as plaintiffs had  vindicated no

federal right.   Williams  v. Hanover  Housing Auth.,  926 F.
                                                                

Supp.  10  (D. Mass.  1996).   See  also Williams  v. Hanover
                                                                         

Housing Auth., 871  F. Supp. 527 (D. Mass. 1994).   The court
                         

                    
                                

1.  Section 1983 provides, in relevant part:
     "Every  person  who, under  color  of  any statute,
     ordinance,  regulation,  custom, or  usage,  of any
     State or  Territory  or the  District of  Columbia,
     subjects, or causes to be subjected, any citizen of
     the  United  States  or  other  person  within  the
     jurisdiction  thereof  to  the deprivation  of  any
     rights,  privileges, or  immunities secured  by the
     Constitution and laws, shall be liable to the party
     injured in  an action at  law, suit  in equity,  or
     other proper proceeding for redress."
42 U.S.C.   1983 (West 1994).

2.  Section 1988 provides, in pertinent part:
     "In any action or proceeding to enforce a provision
     of section [] . . . 1983  . . . , the court, in its
                                                                    
     discretion,  may allow the  prevailing party, other
                                                             
     than the United States, a reasonable attorney's fee
     as part of the costs."
42 U.S.C.   1988(b) (West 1994) (emphasis added).

                             -2-


also declined fees as  a matter of discretion.   We conclude,

notwithstanding plaintiffs failure to prevail on specifically

federal grounds, that they are nonetheless prevailing parties

under   1988, and entitled to fees.

                              I.
                                          I.

          The  disputed fees  claim arises  in the  following

circumstances.    The  plaintiffs-appellants  were  receiving

federal  housing  subsidies under  Section  8  of the  United

States Housing Act of 1937,  as amended.3  In April of  1993,

they brought an  action under  42 U.S.C.    1983 against  the

Arlington   and   Danvers,   Massachusetts,  Public   Housing

Authorities  (the "Authorities"),  as  well  as  against  the

Hanover,  Massachusetts  Public  Housing  Authority  and  the

Secretary of the Department  of Housing and Urban Development

("HUD").4      Plaintiffs-appellants    alleged   that    the

Authorities,   with  HUD's   approval,  were   illegally  and

unconstitutionally preventing them from using their Section 8

subsidies for housing outside  the geographical limits of the

city or town within  which the Authority issuing  the subsidy

was  located.    The Authorities  are  quasi-public  entities

                    
                                

3.  Plaintiffs'-appellants' subsidies were provided under the
Section 8 Rental Certificate and Voucher Programs.  42 U.S.C.
  1437f(r).  See 24 C.F.R. Parts 882, 887 (1995).  
                            

4.  Appellants  did  not  seek attorneys'  fees  against  the
Hanover Public  Housing Authority, nor  against the Secretary
of HUD, and these defendants are not parties to this appeal.

                             -3-


established under Massachusetts law to administer federal and

state  housing programs.   Mass. Gen.  Laws ch. 121B,    1 et
                                                                         

seq. (West 1986 & Supp. 1996).  
                

          The Housing Act of  1937, which includes Section 8,

sought  to provide  an  adequate supply  of  housing for  low

income  families by  subsidizing  their rent  in the  private

market.  42 U.S.C.   1437f(a) (West 1994).  Section 8 allowed

tenants wider geographical choice than  did earlier programs,

increasing opportunities to obtain dwellings in areas of less

concentrated  poverty.   42 U.S.C.    1437f(r)  (West 1994).5

See  also Cranston-Gonzalez National  Affordable Housing Act,
                     

Pub.  L. No. 101-625,    551, 104 Stat.  4224 (1990); Housing

and Community Development Act of 1987, Pub. L. No. 100-242,  

145, 101 Stat. 1852 (1988).

          The Act  leaves it up  to the  states, however,  to

determine the  area within which a  particular public housing

authority may  contract with landlords  to furnish subsidized

housing.  HUD, the federal agency administering the Section 8

                    
                                

5.  Section 1437f(r) provides, in part:
          "(1) Any family assisted under subsection
          (b)  or (o) of  this section  may receive
          such  assistance  to  rent   an  eligible
          dwelling  unit if  the  dwelling unit  to
          which the family moves is within the same
          State,   or  the  same  or  a  contiguous
          metropolitan  statistical   area  as  the
          metropolitan   statistical  area   within
          which is located the area of jurisdiction
          of  the  public housing  agency approving
          such assistance  . . . ."   42  U.S.C.   
          1437f(r)(1) (West 1994).

                             -4-


housing programs, provided in  its regulations that the local

public  housing   authorities   will  determine   their   own

jurisdictional  reach by  reference  to state  law.   See  24
                                                                     

C.F.R.   882.103(a) (1995).

          In 1977, HUD was  presented with conflicting  legal

opinions  from  two  different Massachusetts  public  housing

authorities as  to whether  they could legally  contract with

private landlords outside  their municipal boundaries.6   HUD

asked  the Massachusetts Executive  Office of Communities and

Development ("EOCD"), the state agency that supervises  local

public  housing authorities, to seek a legal opinion from the

Massachusetts Attorney General.   Instead, the EOCD  provided

its own legal opinion, which was that a Massachusetts  public

housing authority  could not contract with  private landlords
                                        

outside its municipal  boundaries, except  by agreement  with

another  local  public  housing   authority.    HUD  and  the

Authorities accepted and followed  the EOCD's opinion on this

matter.   The extent of a local authority's "jurisdiction" to

provide subsidized housing took on added significance in 1992

when  Congress amended the portability rules of the Section 8

housing programs.   Plaintiffs say that  the amendment forced

                    
                                

6.  The Cambridge Housing  Authority, like the plaintiffs  in
this  case, took  the position  that state  law does  not bar
local public housing authorities from contracting anywhere in
the  Commonwealth,  while  the Arlington  Housing  Authority,
similar to  the defendants  in this litigation,  took a  much
narrower view of Section 8 "jurisdiction."

                             -5-


them and others  like them  to seek rental  units within  the

jurisdiction of  a single authority.7   Unless that authority

could provide  housing beyond its  municipal limits,  tenants

like plaintiffs  were curtailed in their  mobility and choice

of housing.   Faced with  this situation, plaintiffs  sued in

the district court under    1983 in April of 1993,  seeking a

judicial determination of  their right to use their Section 8

housing subsidies in  any community within the  Commonwealth.

To  expedite a  decision, the  parties agreed that  the facts

would be submitted as  a case stated.  See  Continental Grain
                                                                         

Co. v. Puerto Rico Maritime Shipping Auth., 927 F.2d 426, 429
                                                      

n.7 (1st Cir. 1992).

          In contending that it was unlawful for HUD and  the

Authorities to restrict their  Section 8 housing subsidies to

the  city or town in which the issuing Authority was located,

the   tenants  alleged  that  the  geographical  restrictions

                    
                                

7.  Section 147 of the  Housing and Community Development Act
of  1992 amended  the portability provisions  of 42  U.S.C.  
1437f by providing that:
          "any   family   not  living   within  the
          jurisdiction of a  public housing  agency
          at the  time that such family applies for
          assistance from such agency shall, during
          the  12-month  period beginning  upon the
          receipt   of   any  tenant-based   rental
          assistance  made  available on  behalf of
          the family, use  such assistance to  rent
          an eligible dwelling unit  located within
          the  jurisdiction  served by  such public
          housing agency."   Housing and  Community
          Development  Act      147,  42  U.S.C.   
          1437f(r)(1) (West 1994).

                             -6-


violated   42   U.S.C.      1437f(r)(1),  the   relevant  HUD

regulations,  Title VIII of the Civil Rights Act of 1968, and

42  U.S.C.   1983.   They also alleged  that the restrictions

interfered  with their  constitutional right to  travel under

the  Fifth and  Fourteenth  Amendments to  the United  States

Constitution.

          Fearing the  loss of  their Section 8  subsidies if

they could not immediately  find housing within the municipal

boundaries of  the  Authority that  issued  their  respective

Section   8  certificates,   the   plaintiffs  moved   for  a

preliminary  injunction  that   would  toll  or   freeze  the

subsidies' expiration dates.  The need for preliminary relief

ceased, however, when defendants  agreed not to terminate the

plaintiffs' subsidies while the case was pending.

          After reviewing submissions and  hearing arguments,

the district  court issued  an oral  opinion on September  9,

1993,  followed by a  written decision on  December 12, 1994.

See Williams, 871  F. Supp.  at 527-35.   The district  court
                        

stated in both that, in its view, Massachusetts law permitted

state public  housing authorities to contract  with landlords

owning dwellings outside their municipal boundaries.

          Less than  a month after the  district court's oral

opinion, HUD  issued a directive to  the Massachusetts public

housing authorities informing them that all Section 8 tenants

could henceforth use their  housing subsidies anywhere in the

                             -7-


Commonwealth.   HUD,  as the  district court  later declared,

Williams,  926 F. Supp.  at 12, treated  the district court's
                    

ruling  as   an  authoritative  declaration   of  state  law,

superseding  the   contrary  opinion   of  the  EOCD.     The

Authorities also went along.

          While the  district court rendered its  own opinion

as to an authority's jurisdiction, it also certified the same

question  to  the  Massachusetts  Supreme   Judicial  Court.8

Before  that court  reached  the matter,  the district  court

withdrew  its  certification,  in  part  because  of  certain

changes in HUD's regulations.  At a November 30, 1995 hearing

in  the district court to  determine the status  of the case,

HUD  assured the district court that, in spite of its changed

regulations,9 it would continue to instruct all Massachusetts

public  housing authorities to abide by  the court's oral and

written decisions  issued in  plaintiffs'    1983 case.   The

district court thereupon dismissed the   1983  action as moot

and   plaintiffs   petitioned,   unsuccessfully,  for   their

attorneys' fees.  

                             II.
                                         II.

                    
                                

8.  The district court certified the following question:
          "Is   a   Massachusetts  Public   Housing
          Authority legally barred from contracting
          with landlords outside the  boundaries of
          the organizing city or town?"

9.  Compare 24 C.F.R.    882.103(a) (1995) with 60  Fed. Reg.
                                                           
34660, 34697 (1995).  

                             -8-


          In  its  opinion denying  to  plaintiffs attorneys'

fees  under 42 U.S.C.   1988, the district court stated that,

to receive fees, the plaintiffs  had to be prevailing parties

in their   1983 action.  In that action, the court continued,

plaintiffs claimed  to have been deprived  of "rights secured

by  federal  statutes,  regulations  and  the  United  States

Constitution."  Williams, 926 F. Supp. at 13.  In the court's
                                    

view, plaintiffs  never became  entitled to fees  because the

court never found that they "had a right under federal law to

have  the Authorities  contract  outside of  their  political

boundaries for Section 8 housing."  Id.  Rather the import of
                                                   

the court's  ruling was that  state, not federal  law allowed

the  Authorities  to  contract  outside  of  their  political

boundaries.  Id.   As plaintiffs did not vindicate  a federal
                            

right, the  district court believed  that   1988  provided no

right to fees.

          The  court also  stated, as  a separate  ground for

decision, that it would refrain from awarding attorneys' fees

as a matter of discretion, even  assuming plaintiffs could be

said to have prevailed on a federal right.

                             III.
                                         III.

          In reviewing the  district court's denial of  fees,

we  turn first to its ruling that, because plaintiffs did not

prevail  on any of their federal claims, they are barred from

receiving  attorneys'  fees under     1988.   We  review this

                             -9-


ruling  de novo as it presents essentially a question of law,
                           

not the individualized considerations  which lead us to apply

a deferential  review standard.   See  Domegan v.  Ponte, 972
                                                                    

F.2d 401, 406 n.8 (1st Cir. 1992).

          We  think   the   district  court's   analysis   is

unsupported  by Supreme Court precedent and  that of this and

other circuits.  The clear tendency of the courts has been to

apply  the  fees  statute  in  a  more   practical  and  less

restrictive way.

          Section  1988 itself nowhere states that attorneys'

fees  can be awarded only  to those who  prevail on expressly

federal grounds.  To be sure, the statute specifies that fees

are to be  awarded only  "in" any of  the enumerated  federal

causes of action, including   1983.  Note 2, supra.  And fees
                                                              

can  be  allowed  only  to  a  prevailing  party.    But  the

attorneys'  fees being requested here  are for services in an

action  to  enforce a  provision of     1983 and  (as further

discussed below) plaintiffs  have, in every  practical sense,

prevailed    having, as  a result of their  lawsuit, achieved

precisely the end-relief they wanted, namely the right to use

their  Section  8  housing subsidies  outside  the  political

boundaries of the Authority providing the subsidy.

          To uphold the district court's rationale,  we would

have to read into   1988 an implied further requirement that,

to be  a prevailing party, it  is necessary not only  to have

                             -10-


secured a significant objective of one's federal lawsuit, but

to  have  done so  by obtaining  a  favorable ruling  on some

federal legal  or constitutional claim advanced  in the suit.

A theory akin  to this  was rejected seventeen  years ago  in

Maherv. Gagne, 448 U.S. 122 (1980), the Supreme Court saying,
                         

          "The   fact  that   respondent  prevailed
          through  settlement  rather than  through
          litigation does not  weaken her claim  to
          fees.  Nothing in  the language of   1988
          conditions the District Court's  power to
          award  fees on  full  litigation  of  the
          issues  or  on  a judicial  determination
          that  the  plaintiffs'  rights have  been
          violated.    Moreover, the  Senate Report
          expressly  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  obtaining  relief
          . . . ."

Maher, 448 U.S. at 129 (citation omitted).
                 

          Maher, it is true, did not deal with  precisely the
                           

present situation,  where  the winning  party  has  prevailed

through the  federal court's favorable  interpretation of  an

issue of state law.  But decisions in this and other circuits

have dealt with outcomes  like the present.   These decisions

indicate that  it  is immaterial  for    1988  purposes  that

plaintiffs'  success in  the    1983  action  results from  a

favorable ruling on a relevant issue of state law, so long as

the state law issue and the federal claims being  made in the

  1983 proceeding are closely interrelated. 

                             -11-


          Judge (now Justice)  Breyer writing for this  court

in  Aubin  v.  Fudala, 782  F.2d  287,  291  (1st Cir.  1986)
                                 

(citation omitted),  said that  "'victory' in a  civil rights

suit is typically  a practical rather  than a strictly  legal

matter."  The court went on  to endorse the Aubins' right  to

fees if they received  "the basic relief they sought  (but on

the  state  claim) and  if, in  fact,  the state  and federal

claims  are factually and  legally interconnected."   Id.  In
                                                                     

Aubin,  id.,  we quoted  the statement  in  10 C.  Wright, A.
                       

Miller  & M. Kane, Federal  Practice and Procedure    2675 at

306 (2d  ed. 1983), that    1988  "has been applied  to allow

fees  for the  successful  prosecution of  pendant state  law

claims when the federal claims, though presenting substantial

federal issues,  never were  reached by the  district court."

See, e.g.,  Milwe v. Cavuoto, 653 F.2d  80, 84 (2d Cir. 1981)
                                        

(reasonable fee should  not be denied simply because the jury

awarded  substantial damages  only in  the pendant  state law

claim).

          Virtually   identical  to   the  present   was  the

situation  in  our  case of  Exeter-West  Greenwich  Regional
                                                                         

School v. Pontarelli, 788  F.2d 47 (1st Cir. 1986).   We said
                                

there  that  attorneys' fees  were  recoverable in  a    1983

action  where  plaintiffs  prevailed  on a  state  law  issue

arising  from the same nucleus of common facts as the federal

claims,  provided  the  latter  were  substantial  enough  to

                             -12-


support  federal jurisdiction.  Id.  at 51-53.   There, the  
                                               

1983 action    alleging that a state education commissioner's

interpretation and  application of  a state law  violated the

federal  constitution     became moot  when the  Rhode Island

Supreme Court, on certification from the federal court, ruled

that  the   commissioner  had   interpreted  the   state  law

incorrectly.  As here,  the favorable interpretation of state

law  came  as a  consequence of  the    1983  litigation, the

federal court,  as part of that  proceeding, having certified

the  determinative state  law  question to  the state  court,

which  overturned the commissioner's interpretation.  Also as

here,  the federal claims in  the lawsuit were  mooted by the

state law ruling and were never decided.  

          In the  present case, as in  Exeter-West Greenwich,
                                                                        

the  unfavorable  interpretation   of  state  law  that   led

plaintiffs to bring the    1983 action was also  certified to

the  highest state  court.   However,  the certification  was

withdrawn   and  federal  and  state  authorities  agreed  to

continue to  abide by the district  judge's own determination

of  state law    a determination that had reversed the EOCD's

construction  challenged in  the    1983 lawsuit.   Following

Exeter-West Greenwich, therefore, we see  no legal impediment
                                 

to  allowing plaintiffs  their attorneys'  fees under    1988

even though their  victory rests  on a state,  not a  federal

                             -13-


ground.   See also Paris  v. U.S.  Dept. of  Housing &  Urban
                                                                         

Dev., 988 F.2d 236, 239-40
                

n.7 (1st  Cir. 1993) (quoting legislative  history of "almost

identical"  bill to  that which  produced    1988, supporting

recovery of fees if the claim  for which fees may be  awarded

meets the "substantiality" test in Hagans v. Lavine, 415 U.S.
                                                               

528  (1974), even though court  declines to enter judgment on

that  claim, so long  as plaintiff prevails  on non-fee claim

arising out of a common nucleus of operative fact).

          It is,  of course,  important to our  decision that

the dispositive state law question was closely interconnected

with the federal claims.   Here, as in Exeter-West Greenwich,
                                                                        

the federal statutory and constitutional claims made in the  

1983  action were  directed  at  overthrowing an  unfavorable

state law ruling.  Whether that ruling was itself correct was

a  legitimate question for consideration  in the   1983 suit:

if,   as   the   district   court   determined,   the  EOCD's

interpretation was  incorrect, there  was no need  to resolve

the federal constitutional claim raised by plaintiffs, a fact

noted   by  the  district  judge  himself  as  a  reason  for

certification.    Williams,  926  F.   Supp.  at  12.10    By
                                      

                    
                                

10.  In the 1994 opinion, the district court stated:
          "In view of  this Court's  interpretation of  state
law,           there  is   no   occasion  to   consider   the
constitutional           question whether  the 1992 amendment
to 42 U.S.C.             1437f(r) infringes upon the right to
travel.  A court         should address constitutional issues
only when a case         cannot be resolved on other grounds.

                             -14-


addressing the  state law  question first, the  federal court

followed the principle that  a case should not be  decided on

constitutional grounds  if other grounds are  available.  The

certification process  enabled the  federal court to  seek an

authoritative interpretation  of state  law from the  state's

highest court;  but this  proved unnecessary as  the district

court's own announced view of the state law persuaded HUD and

the  Authorities  to abandon,  without  more,  their previous

construction, and  to embrace the one plaintiffs wanted.  The

state  law question on which the court ruled was thus closely

entwined with  the federal claims, the  court's addressing of

it  being an  appropriate  judicial action  taken within  the

context of the    1983 proceeding itself.  Being  integral to

the latter and to the federal claims therein, it furnished an

unexceptionable   basis   for   finding  plaintiffs   to   be

"prevailing  parties" entitled  to fees  under    1988.   We,

therefore,   reject  the  district   court's  reasoning  that

plaintiffs are not entitled  to attorneys' fees because their

                    
                                

Burton v.           United States, 196  U.S. 283, 295, 25  S.
                                             
Ct. 243, 245,       49  L.Ed. 482  (1905).   This  Court will
confront the        constitutional  question if  the decision
of the         Supreme Judicial Court on the issues presented
makes          such confrontation necessary and appropriate."
    Williams, 871 F. Supp. at 535.
                        

                             -15-


success  did   not  derive   from  the  vindication   of  any

specifically federal right.11

          We add that it is well-settled in this circuit that

a   1983 plaintiff  seeking attorneys' fees under    1988 may

establish  "prevailing party"  status under  a  "catalyst" as

well as a "merits"  analysis.  See, e.g., Paris, 988  F.2d at
                                                           

241.   Plaintiffs argue that  they win under either approach.

Because the "catalyst" formulation is  so plainly dispositive

we  need   not  determine  whether   plaintiffs  sufficiently

prevailed on the  merits of  their claims to  be entitled  to

fees  under a "merits" analysis  also.  Their  action under  

1983  was at  least  a "catalyst,"  which  resulted in  their

achieving precisely  the result  they sought by  bringing the

action.

          In order to  qualify for "prevailing party"  status

under  a catalyst theory, plaintiffs  must show "(1) a causal

connection between  the litigation and  the relief  obtained,

and  (2)  that  the  fee-target did  not  act  gratuitously."

Guglietti v. Secretary  of Health  & Human  Servs., 900  F.2d
                                                              

397, 401 (1st Cir.  1990) (citing to Nadeau v.  Helgemoe, 581
                                                                    

                    
                                

11.  No  question has  been raised  as to  the jurisdictional
sufficiency  of the  plaintiffs'    1983 action.   It  is not
suggested  that the  federal  issues alleged  in  the    1983
action were so wholly unsubstantial or frivolous as to render
that action a jurisdictional nullity.   See Hagans v. Lavine,
                                                                        
415 U.S. 528, 538 (1974); Exeter-West Greenwich, 788  F.2d at
                                                           
53. 

                             -16-


F.2d 275, 280-81 (1st Cir. 1978)).  See also  Paris, 988 F.2d
                                                               

at 241.12  The lawsuit need not be the sole cause of the fee-

target's  remedial  actions,  but  it must  be  a  "competent

producing  cause of  those actions,"  or play  a "provocative

role in the calculus of relief."  Guglietti, 900 F.2d at 401.
                                                       

See also Paris, 988 F.2d at 241.
                          

          Here   there  is  an  undoubted  causal  connection

between  the     1983  lawsuit and  the  favorable  change in

Section 8  portability policy.   The district  court conceded

that plaintiffs' suit "had  some salutary effect."  Williams,
                                                                        

926 F.  Supp. at 14.   More significantly, it found  that HUD

had  accepted  the  court's   ruling  "as  an   authoritative

declaration of state  law," id.  at 12, leading  HUD and  the
                                           

Authorities  to  abandon  the  EOCD's  ruling  that  had  led

plaintiffs to seek    1983  relief.  The  end result  cannot,

therefore, be thought to have come about independently of the

underlying  litigation, nor can it be said to be unclear that

the  lawsuit  was significantly  responsible  for the  relief

obtained by the plaintiffs.   Compare Paris, 988 F.2d  at 241
                                                       

("Congress specifically mentioned the case in the legislative

history  [of the  amendment] as  being the  'necessary' force

                    
                                

12.       Other  panels  have   worded  the  two-prong   test
differently, holding  that, to be a catalyst, the lawsuit (1)
must be  a "necessary and  important factor" in  achieving an
end result favorable to  the plaintiffs, and (2) must  not be
"frivolous,  unreasonable, or  groundless."   See Exeter-West
                                                                         
Greenwich, 788 F.2d at 52; Coalition For Basic Human Needs v.
                                                                      
King, 691 F.2d 597, 599 (1st Cir. 1982).
                

                             -17-


behind  its  enactment.") with  Guglietti,  900  F.2d at  402
                                                     

("[I]t seems naive in a run-of-the-mine case like this one to

credit the change in the  law to the [plaintiff's] appeal.").

          Before  this action  was  filed, both  HUD and  the

Authorities had taken a firm position towards the plaintiffs'

plight:    for  the first  twelve  months  of  the Section  8

tenancy, the plaintiffs were only entitled to housing located

within  the  municipal  boundaries  of  the   public  housing

Authority issuing their Section 8 certificates.   It was only

in the wake of the district court's announced decision to the

contrary  that  HUD reversed  this  policy  by notifying  all

Massachusetts   public   housing   authorities   that   their

"jurisdiction," for  purposes of  Section 8, extended  to any

community  within  the  Commonwealth,  and  by  granting  the

plaintiffs  full  portability  rights  under     1437f(r)(1).

There  is  no  suggestion  that  without  the filing  of  the

underlying action,  and the  proceedings spawned by  it, this

change in  Section 8 portability policy  would have occurred.

Plaintiffs' lawsuit  was not only a  "necessary and important

factor" in  achieving the  desired result,  it seems  to have

been the key factor.

          While  acknowledging that  the plaintiffs  got what

they wanted in their  lawsuit, the Authorities attribute this

"practical"  success to HUD's "voluntary" agreement to change

                             -18-


its Section  8 portability policy, a  "gratuitous gesture" by

the  fee-target.  But for reasons already stated, there is no

reasonable  way that  HUD's  and the  defendant  Authorities'

change  of heart can be  disassociated from the  lawsuit.  We

accept that HUD and the Authorities were cooperative once the

court had  expressed its interpretation  of state law.   They

might  have continued to fight.   One may  applaud their good

sense and good will.  Still, a ruling even as to state law by

an  experienced district  judge is  a significant  matter, as

these events showed, and the court's ruling was backed by the

pending  certification to the  highest state court.   HUD and

the  Authorities would  hardly have  accepted the  ruling had

they  doubted its  correctness.    The  filing of  this  case

triggered  a  process before  the  district  court (i.e.  the

submission   of   papers,  the   holding  of   hearings,  the

presentation  of arguments,  etc.) that  led to  the district

court's decision.  It  was in response to that  decision that

HUD, and the Authorities, changed their Section 8 portability

policy  in  Massachusetts.   Plaintiffs  are  thus prevailing

parties as that term is used in 42 U.S.C.   1988.

                             IV.
                                         IV.

          Having  found that  the plaintiffs  are "prevailing

parties" for  purposes of    1988, we now turn  to the second

issue  presented  for  review,  to wit,  whether  there  were

"special  circumstances" in  this case meriting  the district

                             -19-


court's denial of  attorneys' fees on discretionary  grounds.

While    1988 provides that attorneys' fees may be granted to

the prevailing party in the district court's discretion, both

the  legislative history  and case law  since enactment  of  

1988 indicate  that prevailing parties may  not ordinarily be

denied fees except in  special circumstances making the award

unjust.   The  district court's  "broad discretion"  to award

fees  to "prevailing parties"  under   1988,  see Sargeant v.
                                                                      

Sharp, 579 F.2d 645, 647  (1st Cir. 1978), must be guided  by
                 

the  statutory presumption  that  fees should  be awarded  to

successful   plaintiffs  absent  unusual   situations.    See
                                                                         

generally  S.  Rep. No.  94-1011  (1976),  reprinted in  1976
                                                                   

U.S.C.C.A.N. 5908.  A prevailing plaintiff, the Supreme Court

has said, "should ordinarily recover an attorney's fee unless

special  circumstances  would render  such an  award unjust."

Hensley  v. Eckerhart,  461  U.S. 424,  429 (1983)  (citation
                                 

omitted) (footnote  omitted); Newman v.  Piggie Park  Enters.
                                                                         

Inc., 390 U.S. 400, 402 (1968).  See also David v. Travisono,
                                                                        

621  F.2d  464,  468  (1st Cir.  1980)  (citations  omitted);

Sargeant,  579 F.2d at 647 (citations omitted).  With this in
                    

mind, we review for abuse  of discretion the district court's

discretionary   determination,   asking  whether   the  court

identified appropriate "special  circumstances" that  justify

the denial of fees.

                             -20-


          In this circuit, "special circumstances" warranting

a denial of attorneys' fees  under   1988 have been  found if

there is  a showing of "outrageous"  or "inexcusable" conduct

by  plaintiffs (or plaintiffs' counsel) during the litigation

of the  case.  Lewis v. Kendrick, 944 F.2d 949, 956 (1st Cir.
                                            

1991).   In Lewis, this court reversed an award of attorneys'
                             

fees  noting  that the  plaintiff  had  "failed entirely,  or

largely,  in  everything" and  that  her  lawyers' subsequent

failure  to  adjust  their  billing  accordingly  was,  thus,

"inexcusable."   Id. at 955-56.  In  a case where a fee award
                                

was affirmed,  but its amount reduced,  this court reiterated

that, under  Lewis, "special  circumstances" exist where  the
                              

fee  application  reflects "(1)  no  'good  faith' effort  to

exclude excessive, redundant, or otherwise unnecessary hours,

(2)  no reduction for time spent  on unsuccessful claims, and

(3) no allowance for the limited 'degree of success' achieved

by  the  plaintiff."   Domegan, 972  F.2d  at 419  (citing to
                                          

Lewis, 944 F.2d at 957-58).  In the instant case, there is no
                 

indication  from the record below that any of the parties (or

their  lawyers)  engaged  in  "outrageous"  or  "inexcusable"

conduct of this nature,  nor does the court suggest  as much.

Compare Lewis,  944 F.2d at 955-56, with,  e.g., Domegan, 972
                                                                    

F.2d at 419-20.

          The district court seems  rather to have employed a

"balancing  of  the  equities"  test  not  accepted  in  this

                             -21-


circuit, see Stefan v. Laurenitis, 889  F.2d 363, 370-71 (1st
                                             

Cir. 1989), in finding "special circumstances" in the instant

case.   The district court first found that the defendants in

this case had acted in good faith.13  The district court went

on to acknowledge that "good faith  alone on the part of  the

Authorities is  insufficient to deny the  Williams Plaintiffs

attorneys'  fees  . . .",  Williams,   926  F.  Supp.  at  14
                                               

(citation  omitted), the  rule in  this and  apparently every

other  circuit that has considered the issue.  Indeed, in the

First Circuit,

          "[T]he  good faith of defendants is not a
          controlling factor in determining whether
          or not plaintiffs  merit an  award...This
          conforms  to  the  policy underlying  the
          award  of attorney's fees in civil rights
          cases...[I]t makes  no difference whether
          plaintiff's suit yields favorable  out of
          court  results  because   a  good   faith
          defendant  is  brought to  understand the
          illegality of his conduct and  alters his
          behavior   or   because  an   unrepentant
          defendant  grudgingly   signs  a  consent
          decree  to   avoid  continued  litigation
          expenses in a lost  cause.  The key issue
                                                               
          is   the   provocative   role    of   the
                                                               
          plaintiff's lawsuit,  not the motivations
                                                               
          of the defendant."
                                      

                    
                                

13.  The district court stated:
          "In interpreting their jurisdiction  as prohibiting
their  contracting  for   housing  outside   of  their   town
boundaries, the Authorities acted in good faith and appear to
have   made  significant  efforts   to  assist  the  Williams
Plaintiffs   in  securing   housing  consistent   with  their
interpretation of  the  restriction on  their  jurisdiction."
Williams, 926 F. Supp. at 13-14.
                    

                             -22-


Nadeau, 581 F.2d at 280 (citations omitted) (emphasis added).
                  

See also Burke v. Guiney,  700 F.2d 767, 772 (1st  Cir. 1983)
                                    

("'Good  faith  by  itself  is  not  a  special  circumstance

justifying   a   denial  of   attorney's   fees.'")  (quoting

Teitelbaum v. Sorenson, 648 F.2d 1248, 1250 (9th Cir. 1981)).
                                  

          Although  the defendants'  good  faith,  in and  of

itself,  was not enough  to justify the  denial of attorneys'

fees, the district court found "something more" in this case,

Williams,  926 F. Supp. at  14, to wit,  the defendants' good
                    

faith  reliance on the EOCD's interpretation of Massachusetts

law.14    The  circuits   are  in  agreement,  however,  that

defendants' good  faith reliance  even on settled  law (which

was scarcely the  case here) is not  a "special circumstance"

                    
                                

14.  The Authorities  suggest that  the  district court  also
took into account what they regard as the plaintiffs' limited
success  in the underlying litigation  in denying an award of
attorneys' fees under   1988.    It is true that, towards the
end of its opinion, the district court notes:
     "[I]n  this  case a  balancing  of  the equities  weighs
against the award of  attorney's fees.  This is  particularly
so  given the relatively arcane point of state law upon which
the Williams  Plaintiffs prevailed."  Williams,  926 F. Supp.
                                                          
at 14.
     Whether the  district  court meant  to identify  another
"special  circumstance" we  need not  decide here,  as  it is
well-established   that  ordinarily   "the   degree  of   the
plaintiff's  success in relation  to the  other goals  of the
lawsuit is a factor critical to the determination of the size
of a reasonable fee,  not to eligibility for  a fee award  at
all."   Texas  State Teachers  Ass'n v.  Garland Indep.  Sch.
                                                                         
Dist., 489 U.S. 782, 790 (1989).  We add that where, as here,
                 
the goal of the   1983  action was to alter the earlier state
law  ruling,  and where  that  occurred,  we have  difficulty
understanding how plaintiffs' success can be termed partial.

                             -23-


warranting  a denial  of attorneys'  fees under    1988.   In

Coalition  For Basic Human Needs  v. King, 691  F.2d 597, 602
                                                     

(1st  Cir. 1982),  where  appellees claimed  that "state  law

required  them     under threat of  criminal penalties     to

deny" plaintiffs the Aid  to Families with Dependent Children

("AFDC") payments they sought, this court said:

          "If the appellees mean  this fact to show
          that they  acted in  good  faith     that
          they  felt obliged to  withhold the funds
          and  obliged  to contest  the Coalition's
          suit     we agree that they  may have had
          good-faith  reasons  for their  acts, but
          that is  no reason to  deny the Coalition
          attorney's  fees.     The  Civil   Rights
          Attorney's  Fees Awards Act  is not meant
          as  a  'punishment' for  'bad' defendants
          who  resist  plaintiffs'  claims  in  bad
          faith.  Rather, it is meant to compensate
          civil  rights  attorneys who  bring civil
          rights cases and win  them.  The need for
          such law  suits,  and such  payment,  may
          well  be greatest in just those instances
          in  which  lawyers   and  officials,   in
          totally good faith,  have opposing  views
          about what state and federal law requires
          of them."

The underlying  theme in  all of  these  "good faith"  cases,

then, is that the  analysis under   1988  must focus, not  on

the  defendants' conduct,  but on  the  harm suffered  by the

plaintiffs  and the  relief obtained  through their  lawsuit.

Having  done so,  we  are  unable to  find  that  any of  the

circumstances  identified  by  the  district  court meet  the

criteria for  "special circumstances" adequate  to deny  fees

under the law as it has  developed.  We hold, therefore, that

                             -24-


the  district court  exceeded its  discretion in  denying any

fees on the discretionary basis set forth in its opinion.

                              V.
                                          V.

          For  all of  the foregoing  reasons, we  vacate the

district  court's order  denying the  plaintiffs'  motion for

attorneys' fees under    1988.   We  remand the  case to  the

district court for  consideration of the fee application in a

manner not inconsistent with this opinion.

          It is so ordered.  Costs for appellant.
                                                            

                             -25-