Brewster v. Dukakis

USCA1 Opinion









UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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Nos. 92-2399
93-1013

DAVID BREWSTER, ET AL.,
Plaintiffs, Appellants,

v.

MICHAEL S. DUKAKIS, ET AL.,
Defendants, Appellees.

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APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Frank H. Freedman, Senior U.S. District Judge]
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Before

Torruella, Selya and Boudin,* Circuit Judges.
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Stephen J. Schwartz, with whom Cathy Costanzo and Center for
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Public Representation were on brief, for appellants.
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Nonnie S. Burns and Hill & Barlow on brief for intervenor,
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Massachusetts Association for Retarded Citizens.
Thomas A. Barnico, Assistant Attorney General, with whom
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Scott Harshbarger, Attorney General, Commonwealth of
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Massachusetts, and William L. Pardee, Assistant Attorney General,
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were on brief, for appellees.

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August 25, 1993
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*Judge Boudin has recused himself in this matter. Therefore, the
case is decided by the two remaining panelists. See 28 U.S.C.
___
46(d)(1988).



















SELYA, Circuit Judge. These appeals mark the most
SELYA, Circuit Judge.
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recent chapter in institutional reform litigation that began

almost two decades ago.1 On this occasion, plaintiffs argue

that the district court erred both in banning future fee awards

and in calculating fees for services rendered by their counsel in

connection with the latest round of litigation. We agree with

certain of plaintiffs' contentions, disagree with others, and

dispose of the appeals accordingly.

I
I

In December 1978, the district court entered a consent

decree resolving a class action, started in 1976, that challenged

the mental health regime maintained by the Commonwealth of

Massachusetts at the Northampton State Hospital. The decree

required the Commonwealth to develop a network of community

residential facilities and nonresident support programs. On

March 12, 1987, after approximately eight years of supervision,

the district court entered a carrot-and-stick order in

anticipation of bringing active judicial involvement to a close.

The order set maintenance-of-effort provisions firmly in place,

enunciated guiding principles, ranked priorities, and directed

that certain further steps be taken. It also offered the

Commonwealth a carrot, providing that, if all went well during

the next three years, the district court would "end its

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1Prior phases of the litigation are chronicled in sundry
opinions of this court. See, e.g., Brewster v. Dukakis, 786
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F.2d 16 (1st Cir. 1986); Brewster v. Dukakis, 687 F.2d 495 (1st
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Cir. 1982); Brewster v. Dukakis, 675 F.2d 1 (1st Cir. 1982). We
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refer persons who hunger for additional detail to those opinions.

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jurisdiction" over the mental health system in Western

Massachusetts. This meant, the court explained, that it would

terminate the decree although continuing the maintenance-of-

effort provisions in effect.

On October 25, 1990, the court issued a disengagement

order that removed much of the case from judicial oversight but

continued the court's control over a portion of the litigation

until September 1, 1991. The 1990 order reiterated the court's

promise to terminate supervision if sufficient progress

transpired. On January 6, 1992, the court entered its final

disengagement order. The court found that compliance had been

achieved and, consequently, ordered:

. . . that the Consent Decree entered on
December 7, 1978 is hereby vacated, the
Court's active jurisdiction over the case and
the mental health system in Western
Massachusetts is hereby ended, and this
action is hereby dismissed. . . .

In the same document, however, the court also stipulated:

. . . that notwithstanding the foregoing
order, the defendants are enjoined from
violating Section III and Paragraph 43 of the
Disengagement Order [continuing the
maintenance-of-effort provisions] which shall
remain in effect.

Then, avowedly "pursuant to" its January 6 order, the court

entered what it styled a "judgment of dismissal." Neither side

appealed.

In earlier proceedings, fees totalling approximately

$675,000 had been awarded to plaintiffs' counsel for work done

through October of 1990. After entry of the judgment of


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dismissal, the parties' attention returned to these verdant

pastures. Plaintiffs filed a further fee application which, as

later supplemented, sought close to $30,000 in fees for the

period November 1, 1990, to June 1, 1992. The Commonwealth

opposed the request in several particulars and also asked the

court to rule out, or at least cabin, future legal fees.

On November 6, 1992, the district court granted the

plaintiffs' fee application in part and denied it in part. Using

reduced rates, the court awarded $12,766 for services rendered

through January 6, 1992, but refused to allow fees for work

performed after that date. The court also responded favorably to

the Commonwealth's motion, stating that it would not award "any

future attorneys' fees." Plaintiffs appealed.

II
II

Plaintiffs' first and most salient attack is upon the

district court's issuance of a categorical ban prohibiting future

fees. They argue that, although the January 6 order and separate

judgment purport to disengage the court from oversight and

dismiss the case, the order explicitly continues in effect an

injunction embodying the maintenance-of-effort provisions.

Because there is an ongoing injunction, plaintiffs say, the

district court, consistent with 42 U.S.C. 1988 (Supp. 1991),

cannot wholly preclude fee-shifting as it relates to future

proceedings that may implicate the injunction.2

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2The statute pertinently provides that in any action to
enforce specified civil rights laws, "the court, in its
discretion, may allow the prevailing party, other than the United

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The Commonwealth adopts a posture of confession and

avoidance. It does not argue that an absolute bar on future fees

is legally supportable a stance we take as an implied

concession of the plaintiffs' basic point but, rather, it

suggests that the court below meant only to preclude compensation

for self-initiated monitoring efforts that might be undertaken

thereafter by plaintiffs' counsel. In support of this reading,

the Commonwealth points to an earlier appeal wherein this court

suggested that it might be appropriate at some stage to ask the

district judge "to relieve [the Commonwealth] of the burden of

paying for private party monitoring." Brewster v. Dukakis, 786
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F.2d 16, 19 (1st Cir. 1986). Thus, the Commonwealth asseverates,

the November 6 order should be read not to prohibit all

attorneys' fees, but simply to limit fees to future disputes, if

any, in which the plaintiffs prove to be "prevailing part[ies]"

within the meaning of section 1988.

It is true that the November 6 order is to some extent

opaque and that the district court's intent in entering it is

correspondingly tenebrous. It is also arguably true that the

district court's judgment of dismissal, together with the court's

references to complete disengagement, may be consistent with an

unqualified end to the litigation. And if this case were

complete, then the issue of future fees would be moot (although

an order barring them would then seem unnecessary). Yet the


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States, a reasonable attorney's fee as part of the costs." 42
U.S.C. 1988 (b).

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Commonwealth's interpretive legerdemain overlooks a crucial fact:

the January 6 order, quoted supra p.3, states unequivocally that
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the maintenance-of-effort provisions continue "notwithstanding"

the dismissal. Unless these provisions are purely hortatory

and the Commonwealth itself does not make such a claim there is

still a permanent injunction operating in this case.

We find that the injunction remains in effect. Our

reasons are twofold. First, although the district court's

dismissal in this case, taken alone, might betoken the end of the

decree, the dismissal does not stand alone. By its terms, it was

entered "pursuant to" an order of even date and the order

itself is no less explicit that "notwithstanding" the proposed

dismissal the defendants are "enjoined" from violating certain

injunctive provisions which remain in force. A court's

dispositive orders must be read as an integrated whole. Reading

the instant record in that fashion, the various edicts clearly

contemplate continuation of the injunction and so long as the

injunction endures, the district court's enforcement authority

can always be "reawakened." Consumer Advisory Bd. v. Glover, 989
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F.2d 65, 67 (1st Cir. 1993); see also In re Pearson, 990 F.2d
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653, 657 (1st Cir. 1993) (noting that when structural injunctions

are left in place, they often require continuing judicial

intervention).

The second reason why we interpret the January 6 order

along these lines is prophylactic: when, as in this case, there

are two possible interpretations of a decree, one of which would


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undermine the decree's validity and the other of which would be

entirely unremarkable, the latter is plainly to be preferred.

Were we to conclude that the Commonwealth's reading of the record

was correct, a serious question would arise as to whether the

judgment complied with the requirement that "a rather precise

statement" be furnished before a district court can terminate an

institutional reform decree. Board of Educ. v. Dowell, 498 U.S.
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237, 246 (1991). As we recently observed, courts entering such

decrees often "pass through levels of disengagement as the decree
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moves toward achievement." Glover, 989 F.2d at 67. Termination
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of a decree has significant consequences for the parties, and

Dowell requires that so important an event be plainly marked.
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For these reasons, we construe the judgment of

dismissal as closing the case administratively but leaving the

injunction in effect. And, once this finding is juxtaposed with

the text of the November 6 order which, as framed, can

certainly be read to interpose a wholesale ban on future fees

(indeed, that is the most natural reading of it) it follows

inexorably that the latter order must be modified.

Notwithstanding that 42 U.S.C. 1988(b) provides that the

district court "may" award reasonable fees to a prevailing party

"in its discretion," the Supreme Court has ruled that attorneys'

fees must be awarded thereunder to a successful plaintiff "unless
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special circumstances would render such an award unjust."

Blanchard v. Bergeron, 489 U.S. 87, 89 n.1 (1989); see also de
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Jesus v. Banco Popular, 918 F.2d 232, 234 (1st Cir. 1990)
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(discussing operation of section 1988). Given this preeminent

authority, an anticipatory negation of all future fees, in all

circumstances, cannot easily be defended in an ongoing

institutional reform case.

The matter before us adequately illustrates the point.

Here, one can easily envision circumstances say, an egregious

violation of the maintenance-of-effort provisions requiring

litigation to set matters right in which section 1988 could

demand a further award of fees.3 Cf. Pearson, 990 F.2d at 657
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(holding that when a structural injunction in an institutional

reform case "has continuing effects, the issuing court retains

authority to enforce it"). We could construct other examples,

but no useful purpose would be served. Because it is perfectly

plain that a total ban on future fees cannot be countenanced

here, the district court's order needs adjustment.

Lest the baby be discarded with the bath water, we also

uphold the district court's ban on future fees insofar as the ban

represents a determination that it is no longer reasonable to

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3The Commonwealth agrees that, in theory, there could be
future litigation in this case for which compensation might
properly be sought, but urges that fees should be granted only if
plaintiffs prove to be the prevailing parties in such future
litigation. Plaintiffs, by contrast, claim that once a suitor is
found to have prevailed on a significant aspect of a civil rights
case and obtains some relief, the district court is not obliged
to subdivide counsel's bill into successful and unsuccessful
elements. In plaintiffs' view, even unsuccessful aspects can be
compensated, although reasonableness remains a constraint and the
degree of success is often relevant to the fee. We think it
unwise to attempt to resolve this conundrum in the abstract;
after all, the district court did not address the standard for
future fee awards and the problem may never arise. Hence, we
express no opinion on these competing contentions.

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remunerate counsel for routine monitoring of the decree

(including the continuing injunction). Plaintiffs themselves do

not object to this limitation on future compensable services and,

given the lack of objection, we see no need to discuss the matter

extensively. After all, when the court ruled that further

monitoring would be superfluous, the litigation had been winding

down for five years, the Commonwealth was in compliance, the

decree had been truncated, and the case was being relegated to

inactive status.

Without wishing unduly to prolong the discussion, we

add one further observation: by tradition and almost by

necessity, district judges have great discretion in deciding what

claimed legal services should be compensated, see, e.g.,
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Phetosomphone v. Allison Reed Group, Inc., 984 F.2d 4, 6 (1st
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Cir. 1993); Lipsett v. Blanco, 975 F.2d 934, 939-40 (1st Cir.
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1992); Foley v. City of Lowell, 948 F.2d 10, 18-19 (1st Cir.
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1991), and there are times when an advance ruling by the trial

court provides helpful guidance. So here, in regard to the

gratuitous nature of future monitoring.

III
III

Another disagreement between the parties concerns the

hourly rates that plaintiffs' counsel should earn for work done

from November 1990 to June 1992. Each of plaintiffs' two

attorneys submitted affidavits reciting their qualifications and

attesting to fees charged and paid at $195 per hour (lead

counsel) and $125 per hour (associate counsel), respectively.


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The district court did not succumb to these importunings, instead

awarding lead counsel, Stephen Schwartz, $120/hr. for core legal

work, and associate counsel, Cathy Costanzo, $80/hr. for such

work. For non-core work, the court awarded lead counsel $80/hr.

and associate counsel exactly half that rate.4 Plaintiffs

assign error to the lower court's refusal to accept what

plaintiffs term their lawyers' "established billing rates."

The standards governing hourly rates applicable to

shifted legal fees are hardly models of precision. The Supreme

Court has endorsed the use of market rates as a starting point,

see Blum v. Stenson, 465 U.S. 886, 895 (1984), but it also has
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approved consideration of adjusting factors. See Pennsylvania v.
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Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546,
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563-65 (1986); Hensley v. Eckerhart, 461 U.S. 424, 434 n.9
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(1983). This court has followed the same course, see, e.g.,
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Lipsett, 975 F.2d at 940-41; United States v. Metropolitan Dist.
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Comm'n, 847 F.2d 12, 19 (1st Cir. 1988), and we have underscored
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the ample discretion of the district judge the judicial officer

who is most familiar with the case, the attorneys, and the

interactive nuances in constructing fee awards. See, e.g.,
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Foley, 948 F.2d at 19.
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We think the current dispute can best be addressed by

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4In the district court's parlance, core work includes legal
research, writing of legal documents, court appearances,
negotiations with opposing counsel, monitoring, and
implementation of court orders. Non-core work consists of less
demanding tasks, including letter writing and telephone
conversations. We upheld a similar taxonomy in Brewster, 786
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F.2d at 21.

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putting it into historical perspective. In 1982, the district

court allowed fees of $80/hr. for lead counsel's court activities

and $70/hr. for his decree-implementation work. In 1985, these

rates were increased to $95 and $85, respectively. In that time

frame, we approved the rates as within the district court's

discretion. See Brewster, 786 F.2d at 21. In 1991, the district
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court raised Mr. Schwartz's rates to $120/hr. for core work and

$80/hr. for non-core work. At the same time, the court set

associate counsel's rates at $80/hr. for core work and $40/hr.

for non-core work. On each occasion, the court rejected

plaintiffs' requests for more munificent rates.

The several affidavits submitted to support plaintiffs'

latest fee application aimed to fill gaps in proof and to show

that counsel actually command the higher rates they seek here

from other clients. In its fee order, issued on November 6,

1992, the district court reaffirmed the rates it had established

in 1991, without discussing the latest set of affidavits. As a

general rule, a fee-awarding court that makes a substantial

reduction in either documented time or authenticated rates should

offer reasonably explicit findings, for the court, in such

circumstances, "has a burden to spell out the whys and

wherefores." Metropolitan Dist. Comm'n, 847 F.2d at 18. But,
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there are occasions on which fee-setting judges "should be

permitted to draw conclusions and make adjustments without full

articulation." Jacobs v. Mancuso, 825 F.2d 559, 564 (1st Cir.
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1987).


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This is such an occasion. The trial court made the

necessary bottom-line findings. Although subsidiary findings

would have been desirable, mitigating circumstances abound: the

judge (who has done a stellar job over almost two full decades)

knew the case inside out; the rates used by the trial court are

the very figures adopted in 1991, the year in which much of this

work was done; those rates were not appealed when first used; and

the newly claimed hours are relatively few in number. Finally,

this is the caboose of a litigation train that has chugged along

for almost two decades. Given the singular nature of the

situation and the age of the case, we are reluctant to press the

district court for supplementary explanation. Believing, as we

do, that the additional expense to be incurred in seeking

perfection would be a poor investment, we decline to disturb the

district court's reaffirmation of the rates it set in 1991.

IV
IV

The last point of contention involves the district

court's refusal to consider awarding fees for services rendered

after January 6, 1992. The court took this position solely

because it believed that no compensation should be paid for work

performed after the date of its last disengagement order. In

light of our holding that a categorical ban on future fees cannot

stand, see supra Part II, the blanket disallowance of fees
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referable to services rendered subsequent to the bar date must

likewise fall.

We must now decide what to do with the disallowed


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hours. Bearing in mind that the district court never addressed

individual entries in the time records submitted for this period,

we would ordinarily remand so that the court might reevaluate the

situation. But, the circumstances here are out of the ordinary:

the contentiousness surrounding the lawyers' compensation

threatens to overshadow the main case a somewhat Kafkaesque

development since the case furnishes the sole raison d'etre for
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the compensation. The Supreme Court has repeatedly cautioned

that a fight over fees, within the broader framework of a

litigated case, ought not take on a life of its own. See, e.g.,
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Hensley, 461 U.S. at 436 ("A request for attorney's fees should
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not result in a second major litigation."). Put bluntly, fee

disputes, unlike Jack's beanstalk or Pinocchio's nose, cannot be

permitted to grow and grow and grow. In kindred circumstances,

we have refused to let the tail wag the dog. We have recognized,

for example, that when a trial court has improvidently disallowed

certain time, an appellate court, so long as the record is

reasonably complete, may appropriately take the bull by the

horns, forgo a remand, and recalculate the fee award without

further ado. See, e.g., Pearson v. Fair, 980 F.2d 37, 45 (1st
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Cir. 1992); see also Foster v. Mydas Assocs., Inc., 943 F.2d 139,
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144 n.8 (1st Cir. 1991) (listing representative cases); cf.
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Navarro-Ayala v. Nunez, 968 F.2d 1421, 1428 (1st Cir. 1992)
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(applying the same principle to a required recalculation of

monetary sanctions). Because this case fits the model, we turn

directly to the necessary computation.


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The block of time in question aggregates 51.9 hours

(31.6 hours attributable to Mr. Schwartz and the remainder

attributable to Ms. Costanzo).5 Lead counsel's time entries

deal exclusively with fee-related work. We have repeatedly held

that time reasonably expended in connection with fee applications

is itself compensable, see, e.g., Lund v. Affleck, 587 F.2d 75,
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77 (1st Cir. 1978), but, since time spent in this exercise often

amounts to little more than "documenting what a lawyer did and

why he or she did it," Gabriele v. Southworth, 712 F.2d 1505,
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1507 (1st Cir. 1983), it may fairly be compensated at a reduced

rate. See id.; accord Jacobs, 825 F.2d at 563; Miles v. Sampson,
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675 F.2d 5, 9 (1st Cir. 1982). Thus, we accept lead counsel's

fee-related time in toto, but direct that it be valued at the
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rate applicable to his non-core work. This portion of the

incremental fee is, therefore, $2528, viz., 31.6 hrs. x $80/hr. =
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$2528.

We treat associate counsel's incremental time in two

segments. We award plaintiffs the miscoded time, see supra note
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5, in its entirety.6 Using the dollar figure computed by

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5The situation is complicated by a careless mistake
contained in the plaintiffs' fee application. In that
submission, plaintiffs identified a block of Ms. Costanzo's time,
totalling 18.3 hours, as having been spent in 1992. So labelled,
_
the time was disallowed. Plaintiffs now allege for the first
time that these hours were misrecorded and actually represent
time spent in 1991. Upon close perscrutation, the entries' text
_
appears to bear out the allegation.

6In the circumstances at bar, we choose not to penalize
plaintiffs for their labelling error. We do not mean to suggest,
however, that a fee-setting court lacks discretion to discount
fees because of sloppiness in the fee-seeker's presentation.

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plaintiffs under the district court's approved rates, see
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Appellants' Brief at 31 n.19, and mindful that the Commonwealth

has not criticized the computation, we value this time at $1150.

We add to this figure $80, representing the remaining two hours

of Ms. Costanzo's time. In doing so, we note that these hours

were spent in fee-related endeavors and should, therefore, be

remunerated at her non-core rate.

As a final check, we have paused to consider whether

the fee award, as adjusted, appears reasonable in the

circumstances and is in overall proportion to what remained at

stake in the winding-down of the litigation. See Jacobs, 825
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F.2d at 563 (suggesting such an overview). We conclude that the

requirement of reasonableness is fully satisfied. The revised

award is fair to plaintiffs and their counsel, although slightly

less generous than they had thought due; it is, at the same time,

fair to the Commonwealth, although slightly more extravagant than

it had hoped. While we anticipate that all the parties will be

displeased, the fact that a fee award leaves both payer and payee

somewhat sullen is often a sign of fairness all around.

V
V

We need go no further. The order appealed from is

affirmed in part and vacated in part. The case is remanded for

the entry of a revised fee award for the period ended June 1,

1992, increasing the amount of attorneys' fees from $12,766 to

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Cf., e.g., Grendel's Den v. Larkin, 749 F.2d 945, 956 (1st Cir.
___ ____ _____________ ______
1984) (finding "no reason to apply the Fees Act in such a way as
to give delinquent applicants a second chance to recover").

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$16,524. The court below shall also enter a new judgment

eliminating the absolute bar on future fee requests (assuming

such an absolute bar was intended), making explicit the bar on

future fees for self-initiated monitoring, and clarifying that

the limited injunction remains in effect until further order.

Should plaintiffs believe they are entitled to fees or costs on

appeal, they may file an application pursuant to 1st Cir. Loc. R.

39.2.



It is so ordered.
It is so ordered.
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