Sandra GARRITY, etc., et al., Plaintiffs, Appellees,
v.
Jоhn SUNUNU, Governor of the State of New Hampshire, et al.,
Defendants, Appellants.
Sandra GARRITY, etc., et al., Plaintiffs, Appellants,
v.
John SUNUNU, Governor of the State of New Hampshire, et al.,
Defendants, Appellees.
Nos. 83-1946, 83-1947.
United States Court of Appeals,
First Circuit.
Argued April 4, 1984.
Decided Dec. 27, 1984.
Bruce E. Mohl, Asst. Atty. Gen., Boston, Mass., with whom Gregory H. Smith, Atty. Gen. and James A. Sweeney, Concord, N.H., were on brief, for John Sununu, Governor of State of N.H., et al.
Richard A. Cohen, Manchester, N.H., with whom John D. MacIntosh, Concord, N.J., was on brief, for Sandra Garrity, etc., et al.
Francis X. Bellotti, Atty. Gen., Judith S. Yogman, Asst. Atty. Gen., Boston, Mass., Government Bureau, James E. Tierney, Atty. Gen., Augusta, Me., Miguel Pagan, Deputy Sol. Gen., Gerardo Mariani, Asst. Sol. Gen., San Juan, P.R., and Dennis J. Roberts, II, Atty. Gen., Providence, R.I., on brief, for Com. of Mass., State of Me., Com. of P.R. and State of R.I., amici curiae.
William R. Yeomans, Atty., Washington, D.C., with whom Wm. Bradford Reynolds, Asst. Atty. Gen., and Jessica Dunsay Silver, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellee U.S.
John D. MacIntosh, Concord, N.H., with whom Richard A. Cohen, and Alan Linder, Concord, N.H., were on brief, for Sandra Garrity, etc., et al.
Gerald M. Zelin, Salem, N.H., with whom Soule, Leslie, Bronstein & Zelin, Salem, N.H., was on brief, for appellees Salem School Dist., et al.
Before CAMPBELL, Chief Judge, BOWNES, Circuit Judge, and HUNTER,* Senior District Judge.
LEVIN H. CAMPBELL, Chief Judge.
These are two appeals concerning an award of attorneys' fees arising out of a largely successful civil rights class action brought by residents of the Laconia State School and Training Center ("Laconia") of New Hampshire. We affirm the judgment of the district court in all except one particular.
I. THE FACTS
We begin by recounting some of the history of the case. Laconia is the only state institution that provides services to the mentally retarded in New Hampshire. Intended originally for children, it was later expanded to accommodate handicapped adults as well. At the time of trial, its population consisted of 564 residents of whom only approximately 80 were under 21 years of age, the rest ranging from ages 21 to 62.
The action was filed on April 12, 1978, by six mentally retarded residents of Laconia against the Governor and various New Hampshire officials allegedly responsible for overseeing services provided to the mentally handicapped. The residents were joined by the New Hampshire Association for Retarded Citizens, and the United States also intervened in their support. On February 22, 1980, the court certified the action as a class action, defining the class as follows,
(1) Class
Developmentally disabled persons who are presently residing at LSS or who in the future may be institutionalized or reinstitutionalized at LSS.
(a) Subclass
Persons between the ages of three and twenty-one years who are or in the future may be confined at LSS, and whose rights under the Education of the Handicapped Act, 20 U.S.C. Sec. 1401, et seq., may be violated.
Garrity v. Gallen,
It was alleged in the complaint that conditions at Laconia, including the institution's inadequate staffing, services and programs, violated the residents' rights under the Developmentally Disabled Assistance and Bill of Rights Act, ("DD Act"), 42 U.S.C. Secs. 6000 et seq.; under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec. 794; under the Education for All Handicapped Children Act ("EAHCA"), 20 U.S.C. Secs. 1400 et seq.; under the federal Constitution; under the Civil Rights Act, 42 U.S.C. Sec. 1983; and under two New Hampshire statutes, N.H.Rev.Stat.Ann. ch. 171-A and N.H.Rev.Stat.Ann. ch. 186-C.
Before the case could go to trial, defendants tendered to plaintiffs an offer of judgment under Fed.R.Civ.P. 68. In the offer, defendants proposed the entry of a court decree affording extensive injunctive relief to plaintiffs along lines pleaded in the complaint. Minimum standards and individual service plans would be guaranteed to the residents of Laconia; state officials would use their best efforts to place all residents for whom Laconia was not the least restrictive environment in less restrictive community settings; and the court was to supervise compliance for a period of years. Plaintiffs refused this offer.
The case went to trial, and following a 40-day trial the district court issued a comprehensive opinion. Garrity v. Gallen,
The court went on to hold that defendants had discriminated against the handicapped in violation of section 504 of the Rehabilitation Act by failing to provide many residents with the individual service plans (ISP) called for by state law. It found that defendants had also violated section 504 by denying many services, such as academic and recreational programs, to the more severely retarded residents, based upon generalized assumptions concerning their inability to benefit. The court also held that the procedures by which educational programs were structured at Laconia violated the EAHCA, and N.H.Rev.Stat.Ann. Ch. 186-C, with the result that Laconia was an "educational waste land." The court found that over half the children at Laconia received under 2 1/2 hours per day of educational services in contrast to the normal 5 1/4 hours for the non-handicapped. The court, in addition, found violations of N.H.Rev.Stat.Ann. Ch. 171-A, providing rights for the developmentally impaired. The court's detailed findings of illegality touched upon most aspects of Laconia's operations. The court ordered extensive relief. See Garrity v. Gallen,
To implement its decision, the court directed the parties to work out a joint plan. Should they be unable to agree upon a plan, they were to file separate proposals. The parties did not, in fact, agree. They instead presented the court with two different plans which it combined in an implementation order issued on November 16, 1981. The State of New Hampshire has subsequently complied with most of the court's order. Substantial funding and law improvements have been provided by the legislature, and plaintiffs have helped monitor the state's compliance.
Following entry of the order of implementation, plaintiffs moved for attorneys' fees pursuant to 42 U.S.C. Sec. 1988 and 29 U.S.C. Sec. 794a. At about the same time, defendants moved under Fеd.R.Civ.P. 68 for attorneys' fees in their own favor from the date of their earlier offer of judgment.
While these motions were pending, on January 25, 1982, nine school districts of the State of New Hampshire and the New Hampshire School Administrators Association sought to intervene to challenge the provisions of the district court's order which afforded relief to the school-age subclass of plaintiffs under the EAHCA and N.H.Rev.Stat.Ann. Ch. 186-C. The district court dismissed this attempt as untimely and we affirmed that decision in Garrity v. Gallen,
On August 25, 1983, the district court held that plaintiffs were entitled to receive attorneys' fees against the state defendants in the main action but refused to grant fees against the school districts which had sought to intervene. Defendants' motion for Rule 68 costs, including attorneys' fees, was dismissed on the ground that the language of the rule did not contemplate an award of attorneys' fees, and thаt defendants' offer had not, in any event, been more favorable than the relief obtained by the plaintiffs.
In computing the amount of the award, the court allowed plaintiffs to recover fees from defendants for legal work covering all claims, including certain unsuccessful ones. It also allowed fees to plaintiffs for services related to their monitoring activities. The court awarded a bonus of 20 percent to two of plaintiffs' counsel, for a total award of $220,140.58. Final judgment was entered.1
Defendants and plaintiffs both appeal from this determination. In No. 83-1946, defendants claim that the district court erred in denying their motion for fees and costs under Rule 68, and they challenge the inclusion of several items in the award made to plaintiffs. Plaintiffs cross-appeal, claiming the district court erred in failing to grant them interest on their fees award. In No. 83-1947 plaintiffs challenge the district court's refusal to grant them fees against the school districts. We discuss these contentions below.
II. DEFENDANTS' FEES CLAIM UNDER RULE 68
Defendants contend that their pretrial оffer of judgment under Rule 682 was at least as favorable as the judgment plaintiffs finally obtained. For that reason, they say the district court erred in disallowing their motion for post-offer costs including attorneys' fees. In defendants' view, Rule 68 entitles them to recover their own attorneys' fees from plaintiffs, and bars plaintiffs from recovering their fees from defendants. At very least, say defendants, the latter is so--plaintiffs' right, as the prevailing party, to recover fees is cut off by Rule 68. See Bitsouni v. Sheraton Hartford Corp.,
In rejecting defendants' post-trial motion for costs, including attorneys' fees as a consequence of their earlier Rule 68 offer, the district court determined that the judgment finally obtained was more favorable than the offer. The court also held that attorneys' fees were not "costs" within Fed.R.Civ.P. 68.
Whether Congress meant attorneys' fees to be recoverable costs under the rule is a question over which courts have differed but which may soon be resolved by the Supreme Court. Compare Fulps v. City of Springfield,
As the question of whether attorneys' fees are costs within Rule 68 is now before the Supreme Court, we shall not presently review the district court's ruling that they are not costs. We focus instead on the district court's determination that the judgment obtained was more favorable than the offer. If that conclusion is valid, it is immaterial whether attorneys' fees are includable within Rule 68 costs, since defendants would not be entitled to costs.
Before deciding whether or not to sustain the district court's finding, we may ask whether Rule 68 applies at all in cases like this which involve complex injunctive remedies rather than easily compared dollar damages. The rule is silent and there is little authority on this issue.3 In the circumstances, we shall assume, without deciding, that Rule 68 is not limited to actions involving liquidated relief. But, adopting that approach, it seems obvious the district court's determination of favorableness must be given a great deal of deference, since in complex cases involving unliquidated relief the relative merits of an early consent settlement and a later decree involve a host of considerations which the trial court is best able to appreciate and compare. Indeed, the decision as to which is the more favorable will ordinarily present a question of fact reviewable under the clearly erroneous standard.4 See Foggs v. Block,
In determining that the judgment was more favorable than the offer, the district court found the latter to be indefinite and ambiguous in some respects. The court was skeptical whether there was much promise in defendants' proposal to develop a plan, to be submitted within 90 days for court approval, that would ensure that the residents of Laconia would receive services in accordance with federal Intermediate Care Facilities for the Mentally Retarded ("ICF/MR") standards under 42 C.F.R. Secs. 442.400-442.516 (1979). The court observed that, unlike the court's later decree, this proposal set no target date for actual compliance with the standards. It noted that under the federal standards, 42 C.F.R. Sec. 442.105 (1983), the existence of a "plan of correction" permitted certification of compliance with the regulations to be obtained, notwithstanding persisting deficiencies. The court concluded that "a plan or offer to achieve compliance is not to be equated with a requirement that the standards be met." As an example, it cited the inability of Laconia to meet the staffing requirements of the federal standards, even though the medicaid-certified buildings were found to be in compliance with ICF/MR standards from 1976 and thereafter.
The court found other deficiencies in defendants' offer as well. It noted that the judgment specifically required programming for class members by a certain date, as opposed to an unspecified future date set forth in the offer; the judgment also provided a specific number of hours of programming, as opposed to the offer's vague requirement of "a program"; and the decree contained specific requisites as to the numbers and types of additional рrofessional staff needed, while the offer was silent. The court pointed out that the order provided for the abolition of discrimination within Laconia on the basis of severity of handicap, something which the offer did not do. As other examples of benefits provided by the judgment but not by the offer, the court cited the provisions for the hiring of a medical director and physician qualified in developmental medicine, the closure of certain buildings by specific times, the provisions for service of 100 Laconia residents in community-based programs while still residing at Laconia, the specific regulation of the administration of psychotropic drugs, and the provisions for educational services to handicapped children.
Defendants argue, to be sure, that the district court misconstrued their offer with respect to the development of the plan for compliance with the federal ICF/MR standards. They assert that their intention was to commit themselves to the standards, not merely to certification. But the lаnguage of the proposal is not absolutely clear. Defendants said they would "develop and submit to the Court for approval within 90 days from the date of this decree a plan to ensure that all developmentally impaired persons who reside at LSS now or in the future will receive services at LSS in accordance with the federal ICF/MR ... standards." No provision was made in the event the court should reject the submitted plan, nor was there any commitment as to the dates by which actual compliance with the standards would be achieved. There is some suggestion in the record that plaintiffs went to court only after Laconia had dragged its feet with respect to earlier promises. Such footdragging would tend to weaken the credibility of the offer, since its value depended on how much defendants could be relied upon to develop and implement an effective plan. For an offer of judgment to have full effect under Rule 68, its terms must be clear. See Scheriff v. Beck,
Defendants also argue that the district court erred when, in comparing the offer and the judgment, it included with the latter plans developed by defendants in response to the court's initial rulings, see
Defendants strenuously contend that their offer was more favorable than the judgment because they had agreed to make their "best efforts" to place each Laconia resident for whom it was appropriate in the less restrictive residential facilities in the community. They contend that this was the primary relief sought by plaintiffs all along, and that it was not granted in the court's judgment. However, plaintiffs did in practical fact secure a measure of community placement relief. The plan of implementation provides for the community placement of 235 persons according to a fixed schedule running until 1985. The court was entitled to regard the specificity of this schedule as contrasting favorably with the vaguer if broader relief tendered in defendants' offer, which only committed them to making their "best efforts." Along with the massive other relief it ordered, the court could consider this specific if limited relief as adding uр to a remedy which, over all, surpassed the offer. Compare Association for Retarded Citizens of North Dakota v. Olson,
Hence, applying the clearly erroneous standard, we are unable to say that the lower court's decision that the relief obtained was not less favorable than the offer must be reversed.
III. REASONABLENESS OF AWARD OF ATTORNEYS' FEES
Both defendants and plaintiffs contend that the district court erred in the amount of the fees awarded. Defendants challenge the award as too high, and plaintiffs, of course, say that it is too low. We shall deal separately with these contentions.
1. Inclusion of Fees for Services under DD Act and "Least Restrictive Setting" Claim
Defendants object to the awarding of fees for services on claims the court ultimately rejected--to wit, the claim under the DD Act, and the claim that plaintiffs had a right (guaranteed by federal or state law, or by the federal Constitution) to be placed in the least restrictive, community setting.
The district court ruled that while plaintiffs did not prevail on the above matters, they had prevailed on related claims and had secured substantial relief overall. For this reason, it refused to reduce the fees award by the amount of time allocated to the unsuccessful claims. The district court reasoned,
Where the lawsuit consists of related claims, a plaintiff winning substantial relief is not to have his attorney's fees reduced simply because the trial court did not adopt each contention raised.
The applicable principles are set out in Hensley v. Eckerhart,
Application of the Hensley formulation to the present facts is not entirely easy since, as defendants point out, plaintiffs were not vindicated on their "least restrictive setting" theory. Arguably, therefore, their success was only "partial." Hensley,
We think the district judge could reasonably find, as he did, that the unsuccessful DD Act claim and the "least restrictive placement" contention were sufficiently related for fee award purposes to the claims on which success was achieved--in particular, to the claim under section 504 of the Rehabilitation Act. The unsuccessful claims shared with the successful claim a "common core of facts"--Laconia's deficient facilities and programs and the proper care and treatment of New Hampshire's handicapped. Moreover, plaintiffs' claim for individual habilitation plans under the DD Act overlapped to some degree the relief ultimately granted by the court relative to individual service plans. Plaintiffs, to be sure, did not persuade the court to give them all the specific relief they requested; however, much of the evidence and arguments relevant to the relief they did not achieve was also relevant to plaintiffs' successful claim under section 504 of the Rehabilitation Act and to the extensive relief obtained. To try to separate out the legal services rendered with respect to these overlapping claims would be an exercise in futility.
Where, as here, the district judge gives consideration to the relevant Hensley factors, its judgment is entitled to stand absent an abusе of discretion. Compare King v. Greenblatt,
2. Fees for EAHCA and Related State Claim
Defendants also attack so much of the fees award as compensated plaintiffs' attorneys for services relative to plaintiffs' claims under the Education for All Handicapped Children Act ("EAHCA"), 20 U.S.C. Secs. 1400 et seq.
By the time the award was made, this court had decided Smith v. Cumberland School Committee,
In Smith v. Robinson, the Court rejected the argument that fees were available in such cases under section 1988, observing that the EAHCA was "the exclusive avenue through which a [handicapped] plaintiff may assert an equal protection claim to a publicly financed special education." --- U.S. at ----,
[e]ven assuming that the reach of Sec. 504 is coextensive with that of EHA [EAHCA], there is no doubt that the remedies, rights and procedures Congress set out in the EHA [EAHCA] are the ones it intended to apply to a handicapped child's claim to a free appropriate public education. We are satisfied that Congress did not intend a handicapped child to be able to circumvent the requirements or supplement the remedies of the EHA [EAHCA] by resort to the general antidiscrimination provision of Sec. 504.
-- U.S. at ----,
Given Smith v. Robinson, we see no basis for upholding the fees award with respect to legal work on the EAHCA claim. The EAHCA claim here was based exclusively on that statute plus N.H.Rev.Stat.Ann. Ch. 186-C (Supp.1983), which the district court held to be the "state counterpart" to the EAHCA.
Whether a claim of this character was technically authorized under the EAHCA is a moot question on which we do not comment: no appeal was taken as to this issue.7 It is clear, in any event, that relief was sought and granted exclusively under the Act and its state counterpart, rather than under any other federal statute. This claim was not the exceptional case mentioned at the end of Smith v. Robinson "where Sec. 504 [of the Rehabilitation Act] guarantees substantive rights greater than those available under the [EAHCA]." --- U.S. at ----,
The district court sought to distinguish our holding in Robinson 's forerunner, Smith v. Cumberland, on the ground that the educational relief it was granting to the plaintiff subclass was under the New Hampshire Special Education Statute, N.H.Rev.Stat.Ann. Ch. 186-C, not the EAHCA. But we do not see how this allows the granting of attorneys' fees. There is no fees provision in N.H.Rev.Stat.Ann. Ch. 186-C itself; if fees are authorized, it has to be through the medium of some fee entitling federal statute.
Of course, if a successful pendent state claim shares a common nucleus of operative facts with a fee entitling federal stаtute, an award of fees for work on the pendent claim might be appropriate.8 Milwe v. Cavuoto,
We accordingly must reverse the award of fees for services relative to the EAHCA and N.H.Rev.Stat.Ann. Ch. 186-C claims of the plaintiff subclass. We remand to the district court for determination of the amount allocable to these claims, and for entry of a new award which excludes that amount.
3. Fees under State Pendent Claims
Defendants also claim that the award of attorneys' fees for work spent on the state pendent claims was erroneous in light of the Supreme Court's recent decision in Pennhurst State School & Hospital v. Halderman, --- U.S. ----,
As we havе already rejected the fees award under N.H.Rev.Stat.Ann. Ch. 186-C on other grounds, defendants' argument would affect, if anything, only the award of attorneys' fees for services regarding N.H.Rev.Stat.Ann. Ch. 171-A. We hold the contention to be without merit.9
The most obvious reason for rejecting this argument is that defendants are asking us to open up an issue--the validity of the district court's granting of relief under N.H.Rev.Stat.Ann. Ch. 171-A--on which they have not only not objected or appealed but in which they have affirmatively acquiesced. Defendants state in their brief, with understandable pride, that they have filed 13 reports with the court since November 1981 detailing their implementation of the court's decree. The most recent such report, they write, was filed on January 16, 1984. Defendants go on to say,
Almost without exception the defendants have fully implemented the provisions of the district court's orders, in accordance with the terms of their proposed plan submitted and then modified by the district court.
The New Hampshire legislature, as well as the executive branch, have meanwhile assisted in implementing the court's plan, by appropriations of money and various other measures.
In Pennhurst, the Supreme Court recognized that the sovereign immunity protected by the eleventh amendment may be waived and that "a State may consent to a suit against it in the federal court," so long as this consent is "unequivocally expressed." Pennhurst, --- U.S. at ----,
Waiver of a state's immunity may be inferred from the state's conduct. See Clark v. Barnard,
4. Monitoring Fees
Defendants challenge the fees award for time spent by plaintiffs' attorneys in post-judgment monitoring of the court's order. They claim this work was not related to any matter on which plaintiffs "may be said tо have prevailed." In their view, compensable post-judgment monitoring should be restricted to efforts necessary to secure compliance from a resistant party, such as time spent in bringing motions for contempt or other similar proceedings.
In its order, the district court found that the services in question "were rendered when disputes arose between counsel for the parties with reference to certain budgetary, environmental, and staffing matters detailed in this Court's prior Order of Implementation," and that "they are reasonable and necessary and are to be awarded."
Other circuit courts have held that post-judgment services necessary for reasonable monitoring of a consent decree are compensable under 42 U.S.C. Sec. 1988. Northcross v. Board of Education,
5. Twenty Percent Bonus
Defendants argue that the district court erred in awarding a 20 percent bonus to two of plaintiffs' lawyers. Plaintiffs requested a 50 percent increase in the lodestar of Richard Cohen and John MacIntosh, their principal attorneys, whose average hourly rates, allowed by the court, were $60.26 and $45.80 respectively. In its order, the district court said that upward adjustments of statutorily awarded legal fees were available only on rare occasions, generally in those cases "where the legal representation is unusually good and exceptional results are obtained." It found that the representation furnished by the two attorneys was unusually good and the results obtained were "exceptional." In support of these findings, the court said,
[p]rior to the litigation and its resulting orders, much discussion and little funding had been provided for the unfortunate mentally retarded citizens of New Hampshire. The litigation has resulted in substantive results, including substantially increased legislative funding, improved facilities at LSS, and ongoing efforts to insure that the future of the members of the plaintiff class is much brighter than it was before counsel were retained to represent their interests.
The court went on to hold that the two attorneys were entitled to an upward adjustment, but limited this to 20 percent, finding the requested 50 percent to be excessive.
Defendants contend that this bonus constituted a windfall, since it was added to the amount already determined to be a "reasonable compensation." Blum v. Stenson, --- U.S. ----, ----,
While upward adjustments to the lodestar have been recognized in the past both by this court and the Supreme Court, the latter has recently ruled, in an opinion issued after the fees award under review, that the reasonable fee contemplated by section 198811 is "presumptively" the product of reasonable hours times a reasonable rate. Blum v. Stenson, --- U.S. at ----,
only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charges and that the success was exceptional.
Id.
In Blum v. Stenson the rates were $95 to $105 an hour, the bonus was 50 percent, and none of the attorneys had had more than 1 1/2 years of experience as practicing lawyers. The Supreme Court termed the upward adjustment "a clear example of double counting." Id.
On the facts of this case, and taking into account that the lower cоurt lacked the guidance of Blum at the time it ruled, we sustain the challenged upward adjustments even though we recognize that under Blum certain of the qualities sought to be recognized by the bonuses might better have been recognized by means of more adequate hourly rates.
First, and most important, there was no "double counting" here, since the district court clearly regarded both Cohen's and MacIntosh's average hourly rates, of $60.26 and $45.80, as below the going market rate:12 it found that the hourly rates submitted by Cohen, who had had eleven years' experience in the practice of law at the time of trial, were "below the average for private practitioners of his age and level of experience." As to MacIntosh, it found his submitted rates "more than reasonable." (MacIntosh had practiced for four years and had extensive civil rights litigating experience as did Cohen.) Adding the 20 percent adjustment to these rates makes them $72.31 and $54.96--substantial but still within the range of the rates indicated in plaintiffs' supporting affidavits. Seе note 12, supra.
Second, the district court supportably found that the results were "exceptional." An "exceptional" outcome is a factor noted in Blum v. Stenson as, in rare circumstances, permitting an upward adjustment.
Finally, the fact that the record shows plainly that the district court acted with painstaking care and restraint in calculating fees makes us especially reluctant to dispute its award. Plaintiffs' counsel likewise submitted carefully compiled, detailed accounts. We, therefore, affirm the district court's fee awards to these two attorneys.
6. Interest on Award
In their cross-appeal, plaintiffs seek to obtain retroactive interest in their fees award from November 25, 1981, the date that final judgment was originally entered in this case. In the alternative, they ask for an increase in their lodestar to reflect the delay in payment. The district court vacated its final judgment in reliance on our opinion in White v. New Hampshire Division of Employment Security,
We are not inclined to second guess the lower court on this matter. In determining the lodestar and awarding the 20 percent upward adjustment, the district court recognized that it was entitled to take account of "possible delays in payment" and, for all we know, did so. As an appellate court, we are disinclined to deal with the issue de novo.
In conclusion we sustain the fees awards in toto except we remand for subtraction of that portion of the fees awards as derives solely from services performed on the subclass's claims under EAHCA and N.H.Rev.Stat.Ann. Ch. 186-C.
IV. PLAINTIFFS' FEES CLAIM AGAINST THE SCHOOL DISTRICTS
In a separate appeal, plaintiffs contend the district court should have allowed their motion for attorneys' fees against the local school districts. Instead, the court rejected the motion. These school districts had unsuccessfully sought to intervene in order to resist parts of the court's order delineating educational responsibilities they must take with respect to institutionalized minor plaintiffs whose families resided in their districts. Garrity v. Gallen,
The Supreme Court's decision in Smith v. Robinson, --- U.S. ----,
The judgment of the district court is affirmed, exсept so much thereof which awards fees for services relative to claims under the EAHCA and N.H.Rev.Stat.Ann. Ch. 186-C, which part is vacated. The case is remanded for recomputation of the fees awards omitting that portion.
So ordered.
Notes
Of the Western District of Missouri, sitting by designation
Final judgment had been initially entered on November 25, 1981, after the district court's order of implementation. However, at the plaintiffs' request, the district court vacated its judgment to consider the fees claims, in light of our decision in White v. New Hampshire Division of Employment Security,
This rule provides,
At any time more than 10 days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. If within 10 days after the sеrvice of the offer the adverse party serves written notice that the offer is accepted, either party may then file the offer and notice of acceptance together with proof of service thereof and thereupon the clerk shall enter judgment. An offer not accepted shall be deemed withdrawn and evidence thereof is not admissible except in a proceeding to determine costs. If the judgment finally obtained by the offeree is not more favorable than the offer, the offeree must pay the costs incurred after the making of the offer. The fact that an offer is made but not accepted does not preclude a subsequent offer. When the liability of one party to another has been determined by verdict or order or judgment, but the amount or extent of the liability remains to be determined by further proceedings, the party adjudged liable may make an offer of judgment, which shall have the same effect as an offer made before trial if it is served within a reasonable time not less than 10 days prior to the commencement of hearings to determine the amount or extent of liability.
Cf. Gay v. Waiters & Dairy Lunchmen's Union Local No. 30,
Defendants argue that because both the offer and the judgment are contained in documents which are matters of record, we are in the same position as the district court to decide their relative benefits, citing Brewster v. Dukakis,
The core relief obtained by the broad plaintiff class here was based on N.H.Rev.Stat.Ann. Ch. 171-A and on section 504 of the Rehabilitation Act. Section 505 of the Act, 29 U.S.C. Sec. 794a(b), allows the court to award a reasonable attorneys' fee to the prevailing party. This provision is similar to 42 U.S.C. Sec. 1988, the subject of the Supreme Court's analysis in Hensley. See infra note 11
In Hensley, the Court said,
It may well be that cases involving such unrelated claims are unlikely to arise with great frequency. Many civil rights cases will present only a single claim. In other cases the plaintiff's claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on thе significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.
Where a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation, and indeed in some cases of exceptional success an enhanced award may be justified. In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. See Davis v. County of Los Angeles, 8 E.P.D. p 9444, at 5049 (CD Cal.1974). Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee. The result is what matters.
If, on the other hand, a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a wholе times a reasonable hourly rates may be an excessive amount.
The EAHCA allows any party aggrieved by a state agency's findings and decision relative to rights conferred by the Act to bring a civil action, 20 U.S.C. Sec. 1415(e)(1), but as the district court recognized, it is not entirely clear to what extent a general enforcement action of the present character could be maintained under the Act without prior administrative proceedings. The EAHCA also provides for the Commissioner of Education to cut off federal funds in the event state agencies fail to carry out their duties under the Act. A state dissatisfied with a funding cutoff may appeal to the federal courts of appeals. 20 U.S.C. Sec. 1416
Were this case to be tried today, the status of the pendent state claims would be considerably clouded by the Supreme Court's decision in Pennhurst State School & Hospital v. Halderman, --- U.S. ----,
As we pointed out in note 8, supra, the eleventh amendment does not otherwise bar a fees award relative to a proper state pendent claim in this proceeding
For all practical purposes, the lower cоurt's judgment on the merits is final, the present appeal being directed solely to attorneys' fees. Notwithstanding the Supreme Court's decision in United States v. U.S. Fidelity Co.,
Because the fees provision in section 505 of the Rehabilitation Act is similarly worded to 42 U.S.C. Sec. 1988, the Court's holding in Blum v. Stenson is controlling as to the former as well as the latter. See Smith v. Robinson, --- U.S. at ----,
Affidavits of three New Hampshire practitioners were filed by plaintiffs in support of their fees claim. Attorney Robert Morrill, who had two years' less experience than Cohen, testified that his normal rates were $75 per hour. He felt that plaintiffs' fees calculations were "more than reasonable and, in fact, very conservative estimates." Attorney Russell F. Hilliard with еxperience comparable to MacIntosh's, testified that his rates varied from $50 to $60 per hour, and that the rates requested by plaintiffs were "extremely fair and reasonable." Attorney Paul Semple, with more experience than either Cohen or MacIntosh, testified that he charged $70 per hour. He added that plaintiffs' proposed rates "seem fair and are probably below the normal billing rates for persons with commensurate experience in private practice in New Hampshire."
As the hourly rates were below the value of the services rendered, plaintiffs can be said to have met the burden stated in Blum v. Stenson of offering "specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rate charges." --- U.S. at ----,
Smith v. Robinson was decided by the Court long after the district court's decision and some time after argument of the appeal in this court
Like the parties and the district court we limit our discussion to attorneys' fees and related costs. We do not understand that the court's power to grant or deny Fed.R.Civ.P. 54(d) costs is being raised in this appeal