United States Court of Appeals
For the First Circuit
No. 10-1268
CATHERINE HUTCHINSON, BY HER GUARDIAN, SANDY JULIEN, ET AL.,
Plaintiffs, Appellees,
v.
DEVAL L. PATRICK, IN HIS OFFICIAL CAPACITY AS GOVERNOR
OF THE COMMONWEALTH OF MASSACHUSETTS, ET AL.,
Defendants, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Michael A. Ponsor, U.S. District Judge]
Before
Lynch, Chief Judge,
Selya and Howard, Circuit Judges.
Jennifer Grace Miller, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief, for appellants.
Steven J. Schwartz, with whom Kathryn Rucker, J. Paterson Rae,
Center for Public Representation, Richard A. Johnston, Michael R.
Dube and WilmerHale were on brief, for appellees.
Jeffrey S. Follett, Brian P. Bialas, and Foley Hoag LLP on
brief for AARP, Center for Law and Education, Inc., Lawyers'
Committee for Civil Rights Under Law, National Consumer Law Center,
Inc., National Health Law Program, Inc., Public Citizen, Inc., The
Judge David L. Bazelon Center for Mental Health Law, National
Disability Rights Network, Inc., Public Justice, P.C., Women's Bar
Association of Massachusetts, Massachusetts Law Reform Institute,
Inc., ARC Massachusetts, Inc., American Civil Liberties Union
Foundation of Massachusetts, Disabilities Rights Center, Inc.,
Disability Law Center, Inc., Disability Rights Center, Greater
Boston Legal Services, Inc., Legal Assistance Corporation of
Central Massachusetts, Rhode Island Disability Law Center, Inc.,
South Coastal Counties Legal Services, Inc., and Western
Massachusetts Legal Services, Inc., amici curiae.
February 17, 2011
SELYA, Circuit Judge. This appeal requires us to
consider the circumstances under which a litigant who obtains
significant relief through a court-approved settlement, rather than
a verdict or a formal consent decree, may achieve "prevailing
party" status and, thus, become eligible for an award of attorneys'
fees under a typical federal fee-shifting statute. The appeal also
requires us to consider when, short of the entry of a final
judgment, "prevailing party" status may attach.
These questions (and the other questions before us) arise
in the following setting. After the parties reached a negotiated
settlement resolving the substance of a complicated class action,
the district court awarded the plaintiffs attorneys' fees and
expenses totaling over three-quarters of a million dollars. The
defendants appeal, asseverating that the district court improperly
characterized the plaintiffs as prevailing parties; acted
prematurely in arriving at that conclusion; and to add insult to
injury, set the amount of the award too generously. We conclude
that the district court appropriately characterized the plaintiffs
as prevailing parties, that the relief obtained was sufficiently
final to justify a fee award, and that the court acted within the
purview of its discretion in fixing the amount. Consequently, we
affirm.
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I. BACKGROUND
On May 17, 2007, the named plaintiffs — several
individuals with acquired brain injuries who qualify for long-term
care services under the Medicaid program and two organizations
devoted to their cause (the Brain Injury Association of
Massachusetts and the Stavros Center for Independent Living) —
filed suit to compel the defendants — various officials of the
Commonwealth of Massachusetts (collectively, the Commonwealth) — to
comply with Title II of the Americans with Disabilities Act (ADA),
42 U.S.C. §§ 12131-12165, section 504 of the Rehabilitation Act, 29
U.S.C. § 794(a), and the reasonable promptness provision of the
Medicaid program as set forth in the Social Security Act, 42 U.S.C.
§ 1396a(a)(8), (a)(10)(A), by offering services and programs for
individuals with acquired brain injuries in integrated community
settings. The Commonwealth filed an answering motion, which
triggered a spate of motion practice.
On July 13, 2007, the plaintiffs moved for class
certification. They then served an array of discovery requests.
The Commonwealth cross-moved to stay discovery pending a decision
on class certification. The district court granted a stay.
On September 26, 2007, the court certified a class.
Shortly thereafter, the parties began settlement negotiations in
earnest and agreed to suspend discovery while negotiations
proceeded. The talks proved fruitful and, on May 30, 2008, the
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parties executed a settlement agreement (the Agreement) that they
described as "final" and "comprehensive."
In terms, the Agreement required the Commonwealth, over
a period of years, to expand community services (residential and
non-residential) for Medicaid-eligible individuals with acquired
brain injuries. To this end, the Commonwealth is charged with
developing several new projects and programs. The Commonwealth's
responsibilities are, however, subject to its ability to secure
both funding from the state legislature and necessary approvals
from the federal government. With respect to these matters, the
Agreement impresses an obligation on the Commonwealth to use best
efforts. If the Commonwealth is unable to obtain funding or
approvals and the Agreement stalls, either side may move to vacate
the settlement so that the plaintiffs can litigate the case.
The Agreement contemplates that the case will remain open
for a period of years while the Commonwealth performs thereunder;
it authorizes dismissal of the action only after the Commonwealth
has completed certain specified obligations and is found to be in
"substantial compliance" with the Agreement's terms. The Agreement
further provides that the district court "shall retain jurisdiction
to hear and adjudicate noncompliance motions."
Because the district court had certified a class, the
Agreement required judicial approval. See Fed. R. Civ. P. 23(e).
The parties jointly moved for this approval and, after a
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preliminary fairness hearing, the district court allowed the
approval process to move forward. The court acknowledged, at the
Commonwealth's urging, that the Agreement memorialized a settlement
and was not tendered as a consent decree.
After the class members were notified of the proposed
settlement, see Fed. R. Civ. P. 23(e)(1), the district court held
a final fairness hearing. The court again noted that the Agreement
"does not constitute a consent decree but is a settlement agreement
of this disputed case." The plaintiffs suggested that the court
approve the Agreement by entering it as a court order, but the
Commonwealth objected. The court expressed its willingness to
indicate, either orally or through a written order, its finding
that the Agreement represented a fair and appropriate resolution of
the matter. It then asked the parties to submit a draft of a
proposed order for approval of the Agreement.
On July 29, 2008, each side submitted a proposed order.
The parties disagreed as to whether the court needed explicitly to
retain jurisdiction as a means of facilitating subsequent
enforcement of the Agreement. In an effort to achieve a meeting of
the minds, the district court suggested the following language:
[T]he court approves the comprehensive
settlement agreement. This case will not be
closed and judgment will not enter pending
compliance with the terms of the settlement
agreement.
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This suggestion did not please anyone. The plaintiffs feared that,
without language explicitly retaining enforcement jurisdiction, the
court's authority might be questioned in the event that further
compliance proceedings become necessary. For its part, the
Commonwealth expressed concern that the court's words might be
transformed into the functional equivalent of a consent decree.
The Commonwealth noted that, in the course of settlement
negotiations, it had consistently maintained its unwillingness to
resolve the case by means of "a document that could be functionally
a consent decree."
Faced with this impasse, the district court took the
matter under advisement. On September 18, 2008, the court, acting
without further input from the parties, entered a final approval
order. The order states in pertinent part:
[T]he court finds that the Comprehensive
Settlement Agreement is fair, reasonable, and
adequate. Therefore, the court approves the
Comprehensive Settlement Agreement, noting
that the parties agree that this agreement
does not constitute a consent decree, and that
the court will retain jurisdiction over the
case. The court orders that this case not be
closed and that judgment not enter pending
compliance with the terms of the Comprehensive
Settlement Agreement.
The entry of the approval order set the stage for the
developments leading to this appeal. The plaintiffs, claiming to
be prevailing parties, moved for an award of attorneys' fees
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(including costs) in the amount of $786,123.1 The Commonwealth
disputed the "prevailing party" characterization, the timing of the
motion for fees, and the reasonableness of the requested award.
The district court found that the plaintiffs were prevailing
parties, that fees were presently allowable, and that the amount
sought was "eminently fair." Accordingly, it awarded the
plaintiffs the full amount sought. This timely appeal followed.
II. ANALYSIS
The Commonwealth prosecutes this appeal on three fronts.
First it asserts that the plaintiffs are not prevailing parties and
that, therefore, they are not entitled to a fee award. Second, it
questions the timing of the plaintiffs' quest for fees. Its
fallback position is that, even if we find its first two points
unconvincing, the district court nevertheless committed an abuse of
discretion in determining the size of the award. We consider these
assertions sequentially.
A. Prevailing Party Status.
We review a determination of "prevailing party" status de
novo. Aronov v. Napolitano, 562 F.3d 84, 88 (1st Cir. 2009) (en
banc); Smith v. Fitchburg Pub. Sch., 401 F.3d 16, 21 (1st Cir.
1
The plaintiffs' motion was, by its terms, brought "pursuant
to 42 U.S.C. § 1988 and 42 U.S.C. § 12205." The language of these
two fee-shifting provisions is virtually identical in all material
respects. Following the lead of the parties and the district
court, we treat the ADA's fee-shifting provision, 42 U.S.C.
§ 12205, as the operative statute.
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2005). Fee-shifting statutes represent a departure from the
historic American rule, which dictates that parties to a case
normally will bear their own counsel fees and costs. See Alyeska
Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975).
When, as in this case, the application of such a statute cuts
through the government's traditional sovereign immunity, it "must
be construed strictly in favor of the government." Aronov, 562
F.3d at 88 (citing Ardestani v. INS, 502 U.S. 129, 137 (1991)).
The text of the ADA's fee-shifting provision reads in its
entirety:
In any action or administrative proceeding
commenced pursuant to this chapter, the court
or agency, in its discretion, may allow the
prevailing party, other than the United
States, a reasonable attorney's fee, including
litigation expenses, and costs, and the United
States shall be liable for the foregoing the
same as a private individual.
42 U.S.C. § 12205. When used in a federal fee-shifting statute,
"the term 'prevailing party' [is] a legal term of art." Buckhannon
Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532
U.S. 598, 603 (2001). The concepts that shape the term apply
broadly to the entire universe of federal fee-shifting statutes.2
See Smith, 401 F.3d at 22 n.8; Doe v. Boston Pub. Sch., 358 F.3d
20, 25 (1st Cir. 2004).
2
In any event, the key precedent is Buckhannon, and the Court
there dealt in part, as we do here, with the ADA's fee-shifting
provision, 42 U.S.C. § 12205. See Buckhannon, 532 U.S. at 601.
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To qualify as a prevailing party, a litigant must show
that a material alteration of the parties' legal relationship has
taken place as a result of the litigation. Tex. State Teachers
Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989).
In addition, a party must demonstrate that the alteration possesses
a "judicial imprimatur." Buckhannon, 532 U.S. at 605 (emphasis in
original). We need only discuss the second of these requirements
here, as the Commonwealth asserts that the "plaintiffs have failed
to satisfy the judicial imprimatur requirement."
The Buckhannon Court identified only two situations in
which this judicial imprimatur requirement would necessarily be
satisfied: where the plaintiff "received a judgment on the merits"
or where she "obtained a court-ordered consent decree." Id. The
Justices left open the question of whether (and if so, under what
circumstances) a court-approved settlement that is not embodied in
a formal consent decree may serve as the gateway to "prevailing
party" status. The case at hand requires us to ponder this
question.
We do not write on a pristine page: our recent en banc
opinion in Aronov provides guidance. There, we indicated that an
order short of a formal consent decree might be sufficient for this
purpose. 562 F.3d at 90. We emphasized, however, that this
inquiry must focus on substance, not form. It follows that it is
the function of the order that carries the most weight in
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determining whether it may serve as the linchpin for "prevailing
party" status. See id. (explaining that "it is the reality, not
the nomenclature which is at issue"); see also id. at 90 n.7
(collecting cases from other circuits reaching the same
conclusion). Thus, rather than look exclusively at the label
attached to a particular order, an inquiring court must consider
"whether the order contains the sort of judicial involvement and
actions inherent in a 'court ordered consent decree.'" Id. at 90.
The Commonwealth argues that Aronov directs us to ignore
the Agreement itself and look exclusively at the approval order
when mulling whether the order contains elements inherent in a
conventional consent decree. That is too crabbed a reading of
Aronov. Indeed, such a myopic approach would be at odds with
Aronov's instruction that "[w]hether an order contains a sufficient
judicial imprimatur can only be determined by determining the
content of the order against the entire context before the court."
Id. at 92 (emphasis supplied); cf. Smyth ex rel. Smyth v. Rivero,
282 F.3d 268, 279 (4th Cir. 2002) (examining whether agreement and
dismissal order "were, in combination, equivalent to a consent
decree"). We thus construe the approval order in light of both the
content of the Agreement itself and its entire context.
Our inquiry looks to three factors. The first factor is
whether the change in the legal relationship between the parties
was "court-ordered." Aronov, 562 F.3d at 90 (quoting Buckhannon,
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532 U.S. at 604). The second factor is whether there was "judicial
approval of the relief vis-à-vis the merits of the case." Id. The
third factor is whether there exists continuing "judicial oversight
and ability to enforce the obligations imposed on the parties."
Id. We start with a determination of whether the change in legal
relationship is court-ordered.
The Agreement itself specifically provides that, in the
absence of court approval, "the Agreement shall be null and void
and of no force and effect." Hence, it is the approval order that
makes the provisions of the Agreement binding on the parties and
gives bite to their reciprocal obligations. In other words, this
is a situation in which the court order triggers the change in the
relationship between the parties, not one in which "the court
merely recognizes what the government has voluntarily agreed to do
and only 'requir[es] [the government] to follow through.'" Id. at
93 (alterations in original) (quoting Smith, 401 F.3d at 27).
Given this reality, we find that the court's involvement is
sufficient to satisfy the first prong of the inquiry.
The second prong of the inquiry requires us to determine
whether there has been "judicial approval of the relief vis-à-vis
the merits of the case." Id. at 90. Under the Civil Rules, a
court must approve a settlement in a class action and is directed
to do so only if it finds the terms of the settlement "fair,
reasonable, and adequate." Fed. R. Civ. P. 23(e)(2); see Nat'l
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Ass'n of Chain Drug Stores v. New Engl. Carpenters Health Benefits
Fund, 582 F.3d 30, 44 (1st Cir. 2009). This is strikingly similar
to a court's role in entering a consent decree — a role that
requires a court to ensure that the terms of the proposed decree
"are fair and not unlawful." Smyth, 282 F.3d at 280.
This background informs the meaning of the phrase
"appraisal of the merits" in the "prevailing party" context. On the
facts here, the district court, while evaluating the fairness of the
settlement under Rule 23(e)(2), engaged in a sufficient appraisal
of the merits for purposes of the imprimatur requirement.
In the process of approving the Agreement, the court
complied fully with the requirements of Rule 23(e)(2). It held
multiple hearings during which it displayed its familiarity with the
terms of the Agreement. At the hearing held on July 25, 2008, the
court expressed its satisfaction that the interests of the plaintiff
class had been adequately considered. The court's extended
engagement with the substance of the Agreement easily distinguishes
this case from the virtually nonexistent review conducted in Aronov,
562 F.3d at 87, where the district court merely entered an
electronic docket entry granting the agreed motion to remand. For
these reasons, we conclude that a sufficient appraisal of the merits
occurred.
This leaves the third prong of the inquiry, in which we
ask whether there exists "an obligation to comply and the provision
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of judicial oversight to enforce that obligation." Id. at 91
(citing Smyth, 282 F.3d at 279-81); see Petersen v. Gibson, 372 F.3d
862, 866-67 (7th Cir. 2004) (holding that "a settlement short of a
consent decree may qualify [as a basis for prevailing party status]
if . . . the order provided that the court would retain jurisdiction
to enforce the terms of the settlement").
In the approval order, the district court expressly
retained jurisdiction over the case. This fits tongue and groove
with the terms of the Agreement, which makes pellucid the parties'
shared desire that the court "retain jurisdiction to hear and
adjudicate noncompliance motions" on a going-forward basis.
Finally, the approval order instructs that the "case not be closed
and that judgment not enter pending compliance with the terms of"
the Agreement. These features distinguish the case at hand from the
swath of cases in which a district court merely recognizes the fact
of a settlement and dismisses the underlying action. See, e.g.,
Smith, 401 F.3d at 21; see also Buckhannon, 532 U.S. at 604 n.7
(noting that federal jurisdiction to enforce private settlements
within the structure of the original case is lacking unless the
terms of the settlement "are incorporated in the order of
dismissal").
Here, moreover, the terms of the Agreement explain in some
detail the parameters of the district court's enforcement authority.
If the parties are unable to resolve compliance issues on their own,
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the plaintiffs may ask the court to determine that the Commonwealth
is not living up to its obligations under the Agreement. The court
is authorized to grant equitable relief (but not to use the contempt
powers) in order to achieve compliance. If the Commonwealth fails
to abide by such an order, the Agreement allows the court to "use
any appropriate equitable or remedial power then available to it."
The broad enforcement authority bestowed upon the district court
separates the Agreement from the mine-run of private settlements,
which — though enforceable — require resort to an independent action
for breach of contract. See, e.g., Aronov, 562 F.3d at 91;
Christina A. ex rel. Jennifer A. v. Bloomberg, 315 F.3d 990, 993
(8th Cir. 2003).
One other facet of the Agreement attests to the district
court's ongoing role. The Agreement is subject to modification only
upon mutual written assent of the parties and with the court's
concurrence. The need for court approval of revisions in the terms
of the Agreement closely resembles the process for amending a
conventional consent decree. See Aronov, 562 F.3d at 91 (discussing
process for modifying consent decrees); see also Fed. R. Civ. P.
60(b)(5). Taken together, the approval order and the Agreement
itself envision an ongoing role for the district court in the
dispute. That role includes ongoing judicial oversight. The
approval order, therefore, satisfies the third prong of the inquiry.
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We summarize succinctly. Consideration of the three
pertinent factors leads inexorably to the conclusion that the
Agreement, though structured as a court-approved settlement rather
than as a formal consent decree, bears a sufficient judicial
imprimatur to qualify the plaintiffs as prevailing parties. That
qualification, in turn, renders them eligible for an award of
attorneys' fees.3
B. Timing.
The Commonwealth maintains that any fee award is premature
because (i) the "success" that the plaintiffs achieved was embodied
in the Agreement and not in any court order; and (ii) in all events,
the order entered by the district court — the approval order — does
not constitute a final judgment. The first of these arguments
(which implicitly acknowledges that the plaintiffs have obtained
some relief on the merits) is easily dispatched. As we already have
explained, the plaintiffs' success hinges on the combined effect of
the Agreement and the approval order. See supra Part II(A). In
view of that fact, it would be struthious — and plainly wrong — to
attribute the relief obtained to the Agreement alone.
3
We emphasize that the mere fact that a settlement is subject
to court approval does not in itself supply the necessary
ingredients for prevailing party status. It is the presence of
continuing judicial oversight that pushes the ball across the goal
line and thus suffices to give a settlement the required judicial
imprimatur.
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The plaintiffs' second argument has a certain superficial
allure. After all, merely winning a battle in an ongoing case will
not normally suffice to animate a federal fee-shifting statute. See
Sole v. Wyner, 551 U.S. 74, 86 (2007) (denying fees to plaintiff who
was granted preliminary injunction but was denied a permanent one);
Hewitt v. Helms, 482 U.S. 755, 760 (1987) (finding no prevailing
party status when "[t]he most that [movant] obtained was an
interlocutory ruling that his complaint should not have been
dismissed for failure to state a constitutional claim"); Hanrahan
v. Hampton, 446 U.S. 754, 758-59 (1980) (denying fees to plaintiffs
who successfully secured vacation of a judgment against them,
yielding a new trial).
This does not mean, however, that a fee award always must
await full litigation of a case and the entry of a final judgment.
The Supreme Court has made it transparently clear that an award
under a federal fee-shifting statute may sometimes be appropriate
prior to the entry of a final judgment. Tex. State Teachers Ass'n,
489 U.S. at 791. Such an award is proper, pendente lite, "where a
party 'has established his entitlement to some relief on the merits
of his claims.'" Id. at 790 (quoting Hanrahan, 446 U.S. at 757).
Thus, prevailing party status is not restricted to a party who has
secured a favorable final judgment. LaRouche v. Kezer, 20 F.3d 68,
71 (2d Cir. 1994).
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The question, then, is whether the plaintiffs, at this
stage, can be said to have succeeded on significant claims affording
them some of the desired relief. Like the lower court, we think
that they have.
The Court has indicated that civil rights plaintiffs who
obtain enforceable relief by means of a consent decree or court-
approved settlement may be entitled to attorneys' fees. Maher v.
Gagne, 448 U.S. 122, 129 (1980). "The fact that [a party] prevailed
through a settlement rather than through litigation does not weaken
her claim to fees." Id. So long as there is a judicial imprimatur
on the relief obtained, fees may follow.4
To be sure, this leaves open a question as to whether the
settlement is sufficiently final to bear the weight of a fee award.
Put another way, does it mark the achievement of a significant
measure of relief on the plaintiffs' claims? Here too the focus on
function over form that we embraced in Aronov informs our
4
In Buckhannon, the Supreme Court emphasized that its earlier
decision in Maher continued to stand for the proposition that a
consent decree may serve as the basis for a fee award. 532 U.S. at
604. The Court noted, however, that any suggestion that Maher
allowed for the recovery of fees for private settlements was
misplaced because such agreements "do not entail the judicial
approval and oversight involved in consent decrees." Id. at 604
n.7. We think that, in light of the functional grounds on which
the Buckhannon Court distinguished private settlements from consent
decrees, its statement, consistent with our analysis in Aronov,
suggests that Maher allows for the award of fees in the case of a
settlement that does entail judicial approval and continuing
judicial oversight (similar to what is involved in connection with
a consent decree).
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understanding of whether the timing is appropriate for a fee award.
Viewed in that perspective, the question demands an affirmative
answer. See, e.g., Richardson v. Miller, 279 F.3d 1, 4 (1st Cir.
2002) (implicitly recognizing that a settlement that was
functionally similar to a consent decree could serve as the basis
for an award of fees).
This litigation has reached a significant plateau. In the
Agreement, the parties characterize the settlement as "final" and
"comprehensive." Moreover, the Agreement, embellished by the
approval order, affords meaningful relief to the plaintiff class and
bears the requisite hallmarks of judicial approbation and oversight.
See supra Part II(A). Thus, this case is unlike Wyner, Hewitt, or
Hanrahan, in which the fee-seeker achieved only some fleeting
success at a time when the litigation had yet to run its course.
This case, while not yet closed, is not currently being litigated;
it has been settled and, therefore, the litigation, as a practical
matter, has drawn to a close.
The Commonwealth notes that there exists the possibility
that litigation could be resumed (if, say, it is unable to secure
funding and, thus, to follow through on the commitments embodied in
the Agreement). But this sort of latent uncertainty exists in
virtually every case; even a final judgment can be appealed, see
Fed. R. App. P. 4, or reopened in certain circumstances, see, e.g.,
Fed. R. Civ. P. 60(b). Such a bare possibility does not, in and of
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itself, inject a sufficient level of uncertainty to make a fee award
premature. See generally Tex. State Teachers Ass'n, 489 U.S. at 792
(explaining that, at minimum, a prevailing party "must be able to
point to a resolution of the dispute which changes the legal
relationship between itself and the defendant" and that an
insignificant "technical victory" would not suffice).
C. Reasonableness.
As a fallback, the Commonwealth challenges the size of the
fee award. For this purpose, we treat case law under the Fees Act,
42 U.S.C. § 1988, and other federal fees clarifying statutes, as
persuasive authority. See Me. Sch. Admin. Dist. No. 35 v. Mr. R.,
321 F.3d 9, 14 (1st Cir. 2003); New Hampshire v. Adams, 159 F.3d
680, 684 (1st Cir. 1998).
"[B]ecause determination of the extent of a reasonable fee
necessarily involves a series of judgment calls, an appellate court
is far more likely to defer to the trial court in reviewing fee
computations than in many other situations." Lipsett v. Blanco, 975
F.2d 934, 937 (1st Cir. 1992). Consequently, appellate review is
for abuse of discretion. Burke v. McDonald, 572 F.3d 51, 63 (1st
Cir. 2009); Gay Officers Action League v. Puerto Rico, 247 F.3d 288,
292 (1st Cir. 2001). Within this rubric, a material error of law
always constitutes an abuse of discretion. Torres-Rivera v.
O'Neill-Cancel, 524 F.3d 331, 336 (1st Cir. 2008). But apart from
issues of law, "we will set aside a fee award only if it clearly
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appears that the trial court ignored a factor deserving significant
weight, relied upon an improper factor, or evaluated all the proper
factors (and no improper ones), but made a serious mistake in
weighing them." Gay Officers Action League, 247 F.3d at 292-93.
When fashioning a fee award, the district court ordinarily
starts by constructing what has come to be known as the lodestar.
See Perdue v. Kenny A. ex rel. Winn, 130 S. Ct. 1662, 1672 (2010).
In general, the lodestar is the product of the number of hours
appropriately worked times a reasonable hourly rate or rates.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Gay Officers Action
League, 247 F.3d at 295. The party seeking the award has the burden
of producing materials that support the request. Hensley, 461 U.S.
at 433. These materials should include counsel's contemporaneous
time and billing records, suitably detailed, and information anent
the law firm's standard billing rates. Gay Officers Action League,
247 F.3d at 295-96. The putative payor may submit countervailing
evidence. See, e.g., Foley v. City of Lowell, 948 F.2d 10, 20-21
(1st Cir. 1991). The court, usually after hearing arguments, will
then "calculate[] the time counsel spent on the case, subtract[]
duplicative, unproductive, or excessive hours, and . . . appl[y]
prevailing rates in the community (taking into account the
qualifications, experience, and specialized competence of the
attorneys involved)." Gay Officers Action League, 247 F.3d at 295.
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In the instant case, the plaintiffs moved for an award of
fees (including expenses) in the amount of $786,123. This figure
included $775,136 in fees and $10,987 in expenses. Billing rates
ranged from $250/hr. to $425/hr. depending on the skill and
experience of the lawyer rendering a particular service. Travel
time, where separately delineated in the motion for fees, was
invoiced at a flat rate of $150/hr.
The plaintiffs buttressed their motion with an array of
supporting documents. In mounting its opposition to the dollar
amount of the request, the Commonwealth relied mainly on
argumentation, not evidence (although it did point to other, more
modest awards that had been made in unrelated cases). After hearing
protracted arguments, the district court awarded the plaintiffs
exactly what they requested.
On appeal, the Commonwealth contests the reasonableness of
this award on three grounds: (i) that it compensates the plaintiffs
for unnecessary work; (ii) that the rates used in formulating the
award are inordinately high; and (iii) that many of the costs and
expense items claimed are not recoverable as part of a fee-shifting
award. We address each of these plaints separately.
1. Time Spent. The Commonwealth's assault on the
temporal component of the fee award rests on an assertion that the
district court abused its discretion by choosing not to pare the
total number of hours claimed by the plaintiffs. Specifically, the
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Commonwealth insists that the plaintiffs overstaffed the case and
that the district court should have carved out time spent in
profligate duplication of effort and other unnecessary or
unreimbursable endeavors, such as intramural conferencing,
settlement negotiations prior to the commencement of the action, and
travel. We do not agree.
The Commonwealth's principal lament relates to staffing.
In evaluating this plaint, we are mindful that there is no
mathematically precise formula for staffing complex litigation.
Each case is different, and the trial court is "uniquely positioned
to weigh the parties' staffing needs, assess the reasonableness of
their handling of the case, and evaluate the quality and relevance
of the services rendered." Gay Officers Action League, 247 F.3d at
298.
We focus first on the plaintiffs' enlistment of a number
of different lawyers, many of whom worked collectively on specific
projects within the broader litigation. Such staffing practices are
not forbidden in fee-shifting cases; parties sometimes are justified
in making a strategic choice to use teams of lawyers in various
phases of complex litigation. See id. at 297 (explaining that "the
mere fact that more than one lawyer toils on the same general task
does not necessarily constitute excessive staffing"). And where the
deployment of multiple attorneys on a single project is reasonable,
that staffing pattern inevitably results in a need for some amount
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of coordination, including intramural conferencing. Everything
turns on the reasonableness of the staffing patterns employed and
the overall time spent. See Torres-Rivera, 524 F.3d at 336
(explaining that reasonableness in the context of time management
"is largely a matter of informed judgment").
When all is said and done, staffing must be appraised on
a case-by-case basis. See, e.g., Gay Officers Action League, 247
F.3d at 298. Here, the plaintiffs accounted for a modicum of
overstaffing by eliminating some time spent by two of their lawyers
and completely disregarding the hours worked by some minor players
before formulating their fee request. The district court, which was
intimately familiar with the demands of this unusually complicated
case, found the remaining hours spent to be reasonable. Had the
Commonwealth submitted evidence opposing the request — for example,
affidavits attesting that private clients would not typically
consent to staffing patterns like those used by the plaintiffs in
this case — the district court might have viewed the question
differently. We certainly would have. Nor has the Commonwealth in
lieu of an affidavit cited to us analogous cases in support of its
contention that this case was simply overstaffed. In the absence of
such information, though the district court's assessment is one on
which reasonable minds could disagree, it was not an abuse of
discretion.
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Much the same approach can be taken to the Commonwealth's
complaint about travel time. Travel is often a necessary incident
of litigation,5 and an attorney's travel time may be reimbursed in
a fee award. See, e.g., Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir.
1983). Although compensation for such time ordinarily is calculated
at an hourly rate lower than that which applies to the attorney's
substantive labors, see, e.g., id., there is no hard-and-fast rule
establishing what percentage of an attorney's standard billing rate
is appropriate for travel time.
Viewed against this backdrop, the Commonwealth's broadside
against travel time misses the mark. Some of the plaintiffs'
lawyers charged for travel time at a reduced rate and those that did
not provide a designated travel rate billed for travel time (as for
their other work) at rates substantially below their customary
billing rates. All of the submissions tied the quantum of travel to
work that the district court found appropriate. The award of
amounts attributable to travel time was, therefore, not an abuse of
discretion.
The Commonwealth also excoriates the inclusion of time
spent in performing legal work prior to the commencement of suit.
"[P]re-suit fees may be awarded . . . only for 'discrete' work 'that
5
In this case, some travel was essential. The case was
pending in the western division of the District of Massachusetts,
sitting in Springfield, and the plaintiffs' lawyers were based in
Boston (some 90 miles away).
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was both useful and of a type ordinarily necessary to advance the
. . . litigation to the stage it reached.'" Schneider v. Colegio de
Abogados de P.R., 187 F.3d 30, 33 (1st Cir. 1999) (quoting Webb v.
Bd. of Educ. of Dyer Cnty., Tenn., 471 U.S. 234, 243 (1985)); see
also Bogan v. City of Boston, 489 F.3d 417, 427 (1st Cir. 2007).
The district court found, at least implicitly, that the pre-suit
hours lodged here fall within this taxonomy. We think that this
judgment call was within the encincture of the court's discretion.
Having dealt with the Commonwealth's specific plaints, we
need not tarry over its global objection to the fee award. In
conjunction with their motion for fees, the plaintiffs submitted
detailed records that itemized their work on the case over a period
of several years. In addition, they submitted affidavits from three
of their counsel describing each lawyer's role in the litigation and
the specific contributions that he or she had made to the case. The
plaintiffs also submitted affidavits from brain-injury experts
speaking to the significance of the relief obtained.
The district court had the benefit of these materials. It
(understandably) gave considerable weight to the fact that the
plaintiffs discounted the total number of hours before compiling
their fee request, electing to eschew compensation for a portion of
the time that they had worked. As a result of this self-pruning,
the requested fee, in the district court's estimation, was actually
lower than the lodestar. The fee award in this case was certainly
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quite generous. On this record, however, we cannot say that the
district court abused its discretion in declining to reduce even
further the total number of hours that the plaintiffs used as the
multiplicand in the calculation of fees.
2. Rates. The Commonwealth also challenges the rates
that the plaintiffs utilized in seeking fees. It suggests that the
use of such exorbitant rates as a basis for the fee award results in
a windfall.
There is no universal market rate for legal services.
Rather, "[r]easonable hourly rates will vary depending on the nature
of the work, the locality in which it is performed, the
qualifications of the lawyers, and other criteria." United States
v. One Star Class Sloop Sailboat, 546 F.3d 26, 38 (1st Cir. 2008);
see Blum v. Stenson, 465 U.S. 886, 895 (1984). There are, however,
some generally accepted guideposts.
One such rule of thumb is that the rate that a private
lawyer actually charges to clients in the ordinary course of his
practice, though not conclusive, is a useful indicator of market
value. One Star Class Sloop Sailboat, 546 F.3d at 40. Another rule
of thumb is that data evidencing the prevailing market rate for
counsel of comparable skill and experience provides helpful
guidance. See Blum, 465 U.S. at 895 & n.11. The fee-seeker must
carry the burden of establishing the prevailing hourly rate (or
schedule of rates) in the community for the performance of similar
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legal services by comparably credentialled counsel. See Bordanaro
v. McLeod, 871 F.2d 1151, 1168 (1st Cir. 1989).
The rates applied and awarded in this case are amply
supported. In their motion papers, the plaintiffs sought
compensation at hourly rates ranging from $250/hr. to $425/hr. The
individual lawyers fell into two groups: lawyers from the nonprofit
Center for Public Interest and lawyers from the Boston office of a
national law firm.
As to the former, the rates used were identical to those
that the same lawyers had previously received in civil rights cases.
See, e.g., Rosie D. ex rel. John D. v. Patrick, 593 F. Supp. 2d 325,
331 (D. Mass. 2009). Moreover, the rates were relatively modest
when compared to the standard rates charged by their counterparts in
private law firms.
As to the law firm, the rates charged were pretty much the
same as those received by the firm in a recently concluded public
interest case. See id. at 330-31. Those rates were in many
instances substantially below the standard billing rates charged by
the private attorneys.6 See id. at 330.
In passing upon the reasonableness of the rates, the court
below considered the rates approved in Rosie D., a case in which the
6
For example, the standard billing rate for the most
accomplished member of the law firm was $725/hr., but the
plaintiffs used a rate of $425/hr. for his time in formulating
their fee request.
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fee award against the Commonwealth was not appealed. The court also
considered affidavits executed by an independent expert on fees and
by two public interest lawyers practicing in Massachusetts. Each of
those affiants opined that the suggested rates were not only
reasonable but also below the market rates for the types of work
performed by the caliber of lawyers involved.
We think it is significant that, despite the ferocity of
the Commonwealth's attack on the rates, it presented no evidence of
a countervailing rate structure. The Supreme Court has admonished
that, where a party opposing a motion for fees fails to submit "any
evidence challenging the accuracy and reasonableness" of the facts
asserted in connection with a supported fee request, that failure
may amount to a waiver of the right to challenge the district
court's determination regarding the reasonableness of the request on
appeal. Blum, 465 U.S. at 892 n.5. Where as here, a prevailing
party submits a supported application for fees, the fee-target runs
a risk if it chooses to do no more than criticize the rates
requested and point to the fact that some other judge, in some other
case, has embraced a different set of rates. Foley, 948 F.2d at 21
("The City, of course, had an opportunity to adduce evidence of a
more realistic rate structure, but did not do so. Absent any such
evidence, we are hard pressed to fault the lower court for embracing
the plaintiff's suggested rates.").
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To say more on this point would be to paint the lily. In
light of the supporting documentation provided by the plaintiffs and
the Commonwealth's failure to produce or point to contradictory
evidence, we conclude that the district court did not abuse its
discretion in fashioning a fee award premised on the suggested
rates.
3. Expenses. The Commonwealth challenges the district
court's allowance of certain expenses and cost items, including
charges for travel, printing, and photocopying. The Commonwealth
asserts that these charges should have been disallowed because they
were not "directly associated" with the litigation. This argument
seems to rest largely on the notion that expenses, not recoverable
as costs under 28 U.S.C. § 1920, are not independently recoverable
at all but, rather, comprise a part of the lawyers' overhead.
This assertion consists of more cry than wool. It is
settled beyond peradventure that reasonable expenses, necessary for
the prosecution of a case, are ancillary to and may be incorporated
as part of a fee award under a prototypical federal fee-shifting
statute. See Palmigiano v. Garrahy, 707 F.2d 636, 637 (1st Cir.
1983) (per curiam); see also 42 U.S.C. § 12205 (including
"litigation expenses, and costs" as components of allowable fee
awards). Contrary to the Commonwealth's implication, the
availability of such remediation is not limited to items recoverable
as court costs under section 1920. Rather, such recovery can extend
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to a broad range of other items, including travel expenses, computer
time, and the like. See Attrezzi, LLC v. Maytag Corp., 436 F.3d 32,
43 (1st Cir. 2006) (explaining that "such items may be recovered
where appropriate as part of attorneys' fees under the typical
federal fee-shifting statute").
The Commonwealth's challenge to the amount of costs
awarded for printing — an expense explicitly listed as taxable under
section 1920 — is equally unavailing. The ADA's fee-shifting
provision clearly includes "costs" as part of an allowable fee
award, and in combination with the express terms of section 1920,
this renders the Commonwealth's bare assertion that printing costs
"have been repeatedly rejected as 'unrecoverable overhead'" wholly
unconvincing.
That ends this aspect of the matter. We hold, without
serious question, that reasonable costs and expenses for travel,
printing, and photocopying can be recovered in a fee-shifting
proceeding without regard to the limitations contained in 28 U.S.C.
§ 1920. Because the Commonwealth has not contested either the fact
or the amount of the expenditures targeted here, awarding
reimbursement of them did not constitute an abuse of the trial
court's discretion.
-31-
III. CONCLUSION
We need go no further. For the reasons elucidated above,
we uphold the district court's award of attorneys' fees and
expenses.
Affirmed.
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