Frazier v. Commissioner, ME HHS

Opinion

USCA1 Opinion

April 14, 1994        [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ___________________

No. 93-2158

COLLEEN FRAZIER, ET AL.,

                               Plaintiffs, Appellants,

                                          v.

               COMMISSIONER, MAINE DEPT. OF HEALTH AND HUMAN SERVICES,

                                Defendants, Appellees.

__________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

[Hon. Gene Carter, U.S. District Judge]
                                          ___________________

                                 ___________________

                                        Before

                                 Breyer, Chief Judge,
                                         ___________
                          Boudin and Stahl, Circuit Judges.
                                            ______________

                                 ___________________

               Thomas H. Kelly, on brief for appellant.
               _______________
               Michael  E.   Carpenter,  Attorney  General,   and  Mary  B.
               _______________________                             ________
          Najarian, Assistant Attorney General, on brief for appellee.
          ________

__________________

                                  __________________

Per Curiam.  Appellants, a class of Aid to Families with
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            Dependent  Children recipients,  appeal the  district court's

            reduction of  their request for attorneys'  fees, pursuant to

            42 U.S.C.    1988.  We  reverse the award  and remand to  the

            district court for further  proceedings consistent with  this

            opinion.

                                          I

                 Appellants brought a class action suit against appellee,

            Commissioner of  the Maine Department of  Human Services [the

            Commissioner],  seeking  declaratory  and  injunctive  relief

            pursuant to  42 U.S.C.   651  et seq., 42 U.S.C.    1983, and
                                          __ ___

            the  fifth and  fourteenth  amendments to  the United  States

            Constitution.     Appellants  alleged  that the  Commissioner

            violated  her statutory and/or  constitutional obligations in

            various  situations where  the  Commissioner collected  child

            support owed  by  a  noncustodial parent  to  more  than  one

            family.  They alleged in particular that the Commissioner (1)

            had no policies or procedures to ensure that amounts of child

            support  paid by  a  noncustodial parent  were equitably  and

            proportionately   divided   between    families   when    the

            Commissioner received  less than the total  amount of support

            due; (2) had  no policies  or procedures to  insure that  the

            child support orders were  not inequitable in arbitrarily and

            capriciously awarding disproportionate  amounts to  different

            families;  and (3)  had failed  to follow  federally mandated

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child support review and  modification procedures.  The first

            two issues were  settled by consent decrees, entered  into by

            the parties in  May 1992 and March 1993.   The consent decree

            also provided  that the  final  claim would  be dismissed  by

            appellants without prejudice.

                 After approval of the  consent decree, appellants sought

            attorneys'  fees of $12,210.91 pursuant  to 42 U.S.C.   1988.

            The  district  court found  that appellants  were "prevailing

            parties" but  reduced the amount  of the award  to $3,620.00.

            The  only issue on appeal is the reasonableness of the amount

            awarded.  

                                          II

                 Although the district  court possesses broad  discretion

            in fee  setting matters,  see, e.g.,  Segal v.  Gilbert Color
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            Systems, Inc., 746  F.2d 78,  86 (1st Cir.  1984), the  court
            ____________

            must "make  concrete  findings and  explain  its  reasoning,"

            Weinberger v. Great Northern Nekoosa Corp., 925 F.2d 518, 527
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            (1st Cir. 1991)  (citing cases).   This court  has long  held

            that,  unless an alternative method is required by law, it is

            best  to calculate  attorneys' fees  based  on the  number of

            hours reasonably  expended multiplied by a  reasonable hourly

            rate.  Id.; see also Hensley  v. Eckerhart, 461 U.S. 424, 436
                   __   ___ ____ _______     _________

            (1983) (approving this method for awards pursuant to   1988).

            Once the court has ascertained the "lodestar" amount,  it may

            adjust this figure  as appropriate.   Segal 746  F.2d at  87.
                                                  _____

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This  approach  is recommended  both  because  it limits  the

            danger of arbitrariness in  fee setting, Weinberger, 925 F.2d
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            at  526, and because it allows for "meaningful review" of the

            award by an appellate court, Furtado v. Bishop, 635 F.2d 915,
                                         _______    ______

            920 (1st Cir. 1980).

                 In  the instant case, the district court did not use the

            "lodestar" approach.  Instead, the court found that $3,620.00

                 represents    reasonable   compensation    to   the

                 Plaintiffs'  counsel  in  this  case,  taking  into

                 account, on  balance, the difficulty  of the issues

                 contested, the significance of the  result obtained

                 in the  settlement of  the case,  and the  level of

                 professional  diligence  and experience  brought to

                 the  task  of  representing  Plaintiffs'  interests

                 herein by their counsel.

            The court made  no findings  as to the  reasonable number  of

            hours  expended on the case or the reasonable hourly rate for

            counsel.

                  Appellee asserts that the court was not required to use

            the  lodestar  approach  in   this  case  because  appellants

            achieved only de  minimis success on their  claims.  Appellee
                          __  _______

            calls attention  to the  Supreme  Court ruling  in Farrar  v.
                                                               ______

            Hobby, 113  S.Ct. 566  (1992), which  stated that  "'the most
            _____

            critical factor'  in determining the reasonableness  of a fee

            award  'is the degree of  the success obtained,'"  id. at 574
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(quoting Hensley, 461 U.S.  at 436), and that, in  some cases
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            where  a plaintiff  has  obtained only  minimal success,  the

            court may award low fees  without "multiplying 'the number of

            hours  reasonably expended  .  .  .  by a  reasonably  hourly

            rate,'" id. at 575 (quoting Hensley, 461 U.S. at 433).  
                    __                  _______

                 We do not find the reasoning in Farrar applicable in the
                                                 ______

            instant  case.   Farrar  was a  damage  action in  which  the
                             ______

            indisputably de minimis success of plaintiff was evidenced by
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            his having been awarded only $1 of the $17 million in damages

            he sought.  See id.  The instant case,  on the other hand, is
                        ___ __

            an  action for injunctive and declaratory relief in which the

            degree of success is not obvious, not discussed in any detail

            by the district court, and very much disputed by the parties.

            Moreover,  the district  court  has not  made  clear how  the

            degree of  success affected its  overall fee assessment.   In

            these circumstances, we think  it necessary that the district

            court first  calculate the  lodestar amount, and  then, after

            determining  appellants'  degree  of  success,  see  Culebras
                                                            ___  ________

            Enterprises Corp. v. Rivera-Rios, 846 F.2d  94, 102 (1st Cir.
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            1988) (district court in best position to determine degree of

            success),  adjust  the  lodestar  amount  in  light  of  that

            determination, see,  e.g., id. (no abuse  of discretion where
                           ___   ___   __

            district court reduced lodestar figure by 50 percent in light

            of  plaintiff's lack  of  success on  claim  for damages  and

            limited  success on claim for  injunctive relief).  There may

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be situations apart  from Farrar  where adequate  explanation
                                      ______

            for  dispensing with the lodestar might excuse any attempt to

            compute  the  lodestar  as  a starting  point;  but  no  such

            explanation has been attempted in this case and we think that

            it  will be  more efficient  here for  the district  court to

            compute the lodestar and then make any adjustments  it thinks

            warranted.  

                 Appellee  also  asserts  that  the  district  court,  in

            reducing  appellants' request, did  not abuse  its discretion

            because  appellants  did  not  provide  a  proper  basis  for

            determining how much  time was spent on their  successful and

            unsuccessful claims.   The  failure to particularize time may

            in some  cases restrict an appellant's right  to challenge an

            award on appeal.   See Nadeau v. Helgemoe, 581  F.2d 275, 279
                               ___ ______    ________

            (1st Cir. 1978) (court will not view with sympathy claim that

            court awarded unreasonably low  fees where plaintiff was only

            partially  successful and  records do  not provide  basis for

            distinguishing time spent on particular claims).  However, in

            this  case, appellants  did provide  the district  court with

            detailed specific documentation of  how their time was spent.

            Moreover, appellants' claims arguably involved a "common core

            of facts" and  were "based on  related legal theories"  which

            made  the  division  of  time  on  a  claim  to  claim  basis

            difficult.    See  Hensley,  461 U.S.  at  435.    In such  a
                          ___  _______

            situation, a  reasonable fee  "may  include compensation  for

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legal  work  performed on  the  unsuccessful  claims."   Id.;
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            Garrity v.  Sununu, 752 F.2d 727,  734 (1st Cir.  1984).  The
            _______     ______

            determination  of  whether  or  not  appellants'  claims were

            "interrelated" is again best made by the district court.  See
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            Lipsett v. Blanco, 975 F.2d 934, 941 (1st Cir. 1992).  
            _______    ______

                 For these reasons, we vacate the award and remand to the

            district court  for further  proceedings.  In  remanding this

            case, we do not suggest that the dollar amount awarded by the

            district  court  was  unreasonable.   We  only  require  that

            (absent unusual  circumstances and an  explanation) the court

            adhere to  the normal lodestar procedures  in calculating the

            award.

                 The award of attorneys' fees is vacated and remanded.
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