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.
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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.
2
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
3
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
4
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).
5
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
6
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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7
(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.
8
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.
9
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.
10
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).
11
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.
13
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.
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1984) (finding "no reason to apply the Fees Act in such a way as
to give delinquent applicants a second chance to recover").
15
$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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