USCA1 Opinion
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."
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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
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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
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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
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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
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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. ________
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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.
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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). ____
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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
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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
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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.
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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
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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. ________
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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.
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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
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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. ________________ ___________________
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