Rosie D v. Romney

• Court: District Court, D. Massachusetts
• Decided: March 22, 2022
• Docket: 3:01-cv-30199
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO. 01-30199-RGS

ROSIE D., et al.,

v.

CHARLES BAKER, et al.,

MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION FOR ATTORNEYS’ FEES AND COSTS

March 22, 2022

STEARNS, D.J. After fifteen years of efforts to achieve substantial compliance with the underlying Judgment in this matter, as well as a series of subsequent remedial orders, and after a comprehensive review by the First Circuit Court of Appeals, see Rosie D. by John D. v. Baker, 958 F.3d 51 (1st Cir. 2020), this court determined that the Commonwealth defendants had, with plaintiffs’ prodding, accomplished what could have been reasonably expected of them. As the court observed in terminating the litigation, these efforts had resulted in a significant revamping and expansion of the social services available to emotionally disturbed children in Massachusetts. Plaintiffs now move for a final award of attorneys’ fees and costs. For the following reasons, the court will ALLOW the motion in substantial part. BACKGROUND

The court assumes familiarity with the background of the case and will recount the facts that are relevant to the instant fee request. Plaintiffs, a class of children with serious emotional disturbances (SED), sued the defendants on October 31, 2001, for violations of the Medicaid Act, 42 U.S.C.

§§ 1396 et seq. Five years later, following a bench trial, Judge Michael Ponsor found that the Commonwealth defendants had violated (1) the Act’s requirement of early and periodic screening, diagnostic, and treatment

services (EPSDT) and (2) its “reasonable promptness” provision. On July 16, 2007, Judge Ponsor entered a Judgment in favor of the plaintiffs that incorporated a remedial plan intended to ensure that the plaintiff class had access to the services mandated by Medicaid. See Judgment (Dkt # 368).

Having secured the Judgment, plaintiffs moved for an award of $7,185,958.32 in attorneys’ fees and costs under 42 U.S.C. § 1988. Defendants took the position that plaintiffs were entitled to only $2,708,487.01. The court largely sided with plaintiffs and ordered an

award of $7,106,414.57. See Rosie D. ex rel. John D. v. Patrick, 593 F. Supp. 2d 325, 335 (D. Mass. 2009). Judge Ponsor first recognized that, following

2 entry of the Judgment, the plaintiffs were a “prevailing party” eligible for fees under 42 U.S.C. § 1988. See id. at 328; see also Buckhannon Bd. & Care

Home, Inc. v. W. Va. Dep’t of Health and Human Res., 532 U.S. 598, 603- 604 (2001). He then approved the hourly rates of the plaintiffs’ attorneys after noting that the private attorneys who had joined the plaintiffs’ team from the law firm WilmerHale had voluntarily reduced their rates by nearly

40%. He used WilmerHale’s reduced rates as a benchmark for the rates applicable to plaintiffs’ public interest attorneys. See Rosie D., 593 F. Supp. 2d at 330-331. Finally, Judge Ponsor rejected defendants’ request for a

30% reduction in plaintiffs’ claimed hours, finding the number of hours expended to be reasonable and nonduplicative given the complexity of the case and plaintiffs’ voluntary agreement to eliminate over 5,200 hours of billings. See id. at 332.

Plaintiffs moved for a second award of fees and costs in May of 2010, seeking $1,502,250.30 associated with their attorneys’ work monitoring the implementation of the Judgment and litigating disputes that had arisen during that process. The court awarded $1,459,684.50 in fees and costs

after largely rejecting defendants’ position that the court should discount any undertaking by plaintiffs’ lawyers that was not “reasonably calculated to

3 deliver a material benefit to Plaintiffs.” Rosie D. ex rel. John D. v. Patrick, 759 F. Supp. 2d 146, 149-150 (D. Mass. 2011). In lieu of defendants’

proposed standard, Judge Ponsor turned to the First Circuit’s decisions in Garrity v. Sununu, 752 F.2d 727, 738 (1st Cir. 1984), and Brewster v. Dukakis, 786 F.2d 16, 18 (1st Cir. 1986), and held that plaintiffs were eligible for fees associated with attorney activities that were “necessary for

reasonable monitoring.” Rosie D., 759 F. Supp. 2d at 150. Judge Ponsor also found that the specific actions challenged by defendants, including seeking court orders over disputes surrounding implementation of the

Judgment, opposing defendants’ motion to postpone the implementation schedule, proposing an alternate form of judgment, and filing their initial fee petition were reasonable “monitoring” activities. See id. at 150-153. Judge Ponsor made modest reductions for hours expended that he deemed

excessive. After unsuccessfully litigating Judge Ponsor’s 2009 and 2011 orders, defendants did not oppose the additional motions for fees and costs that plaintiffs subsequently filed over the years. See Dkt # 566; Dkt # 636; Dkt

# 670; Dkt # 755; Dkt # 874. The parties were not able to agree, however, on the amount to be awarded in fees and costs on this final motion.

4 Plaintiffs seek $1,310,647.00 in fees and $654.00 in costs for their attorneys’ legal work between July 1, 2018, and November 29, 2021. Plaintiffs also

state that they have reduced their total billable hours by 25% and the resulting lodestar by an additional 10%. See Mem. in Supp. of Mot. for Fees, Ex. 1 (Dkt # 971-1). Defendants oppose any award of fees and costs, arguing that plaintiffs are seeking compensation for work that was

unsuccessful or undertaken in an unreasonable attempt to expand the Judgment. See Opp’n (Dkt # 974) at 1. DISCUSSION

Under 42 U.S.C. § 1988, the court may award reasonable attorneys’ fees and costs to a “prevailing party.” After prevailing on the merits, a plaintiff also remains eligible for fees for “reasonable post-judgment monitoring.” Brewster, 786 F.2d at 19. To satisfy the reasonableness

requirement, the work performed must be “useful” and “ordinarily necessary.” Id. The court in applying this standard is to ensure that post- judgment monitoring does not become “a state-funded, open-ended sinecure for counsel.” Id. at 18 (internal quotation marks omitted).

Once a party is deemed eligible for attorneys’ fees, the court uses the lodestar method to determine the total amount of fees, multiplying the

5 reasonable number of hours billed by a reasonable rate. See Rosie D., 593 F. Supp. 2d at 328, quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).

“In implementing this lodestar approach, the judge calculates the time counsel spent on the case, subtracts duplicative, unproductive, or excessive hours, and then applies prevailing rates in the community (taking into account the qualifications, experience, and specialized competence of the

attorneys involved).” Gay Officers Action League v. Puerto Rico, 247 F.3d 288, 295 (1st Cir. 2001). Beyond dispute, plaintiffs are a prevailing party within the meaning of

42 U.S.C. § 1988. See First Circuit Order of November 3, 2020 (First Circuit Order) (Dkt # 909). The question, therefore, is whether the activities for which plaintiffs now seek fees and costs were “useful” and “ordinarily necessary.” The billed activities include: (1) plaintiffs’ Motion to Modify

Paragraph 52 of the Judgment and to Reinstate Court Monitoring and Reporting (Monitoring Motion) (Dkt # 910); (2) plaintiffs’ Motion to Modify the Judgment to Incorporate Defendants’ EPSDT Timeliness Standard for Remedial Standard (Timeliness Standard Motion) (Dkt # 918); (3) plaintiffs’

Motion to Modify the Judgment to Incorporate Outpatient Therapy (Outpatient Therapy Motion) (Dkt # 920); (4) plaintiffs’ 2018 Opposition to

6 Defendants’ Motion to Terminate Monitoring (2018 Monitoring Opposition) (Dkt # 857) and subsequent work on the appeal by the defendants to the First

Circuit; (5) plaintiffs’ 2021 Opposition to Defendants’ Motion to Alter and/or Terminate Judgment (2021 Termination Opposition) (Dkt # 955); (6) plaintiffs’ limited post-2018 monitoring activities; and (7) plaintiffs’ work on the instant motion for fees and costs (Dkt # 970).1 Defendants contest an

award of fees for each of these activities because, in defendants’ view, they represented non-compensable efforts to expand the Judgment or were unsuccessful, or both.

Defendants’ position that activity undertaken to expand the scope of a judgment is per se not compensable is unsupported by any First Circuit or Supreme Court precedent of which the court (or the defendants) is aware. Rather, defendants rely on the inverse inference. See Opp’n at 5-6 (“Since

Buckhannon clarified the meaning of the phrase ‘prevailing party,’ the First Circuit has not issued any ruling finding that a party is eligible for fees or costs for unsuccessful attempts to expand a judgment.”). This is not an

1 Defendants also challenge an award of fees related to plaintiffs’ Motion to Approve and Order Disengagement Measures, Actions to Improve Access to Remedial Services, and Provisions on Outpatient Services (Dkt # 847). Plaintiffs, however, do not seek fees related to this Motion. See Pls.’ Reply (Dkt # 976) at 7 n.6. 7 issue that the court need attempt to resolve as it will apply the “useful and ordinarily necessary standard” that Judge Ponsor derived from Garrity and

Brewster and applied consistently throughout his tenure as the judge presiding over this case. Second, while the degree of success is certainly relevant to the amount of a fee award, the court respects Judge Ponsor’s decision to grant fees for reasonable monitoring efforts even in instances

where they proved unsuccessful. See Rosie D., 759 F. Supp. 2d at 151. With that framework in mind, the court will evaluate the request for fees for each of plaintiffs’ activities.

a. Plaintiffs’ Affirmative Motions The Monitoring Motion, Timeliness Standards Motion, and Outpatient Therapy Motion were reasonable monitoring activities that are compensable. They each represented steps undertaken to protect core aspects of the

Judgment that are “inextricably intertwined” with the underlying litigation. Cody v. Hillard, 304 F.3d 767, 775 (8th Cir. 2002). As to the Monitoring Motion, the Judgment mandated the appointment of a Court Monitor tasked with reviewing defendants’

compliance with the Judgment based on periodic reporting by the defendants. See Judgment (Dkt # 368-2) ¶¶ 47-48. While the Court

8 Monitor’s appointment was initially intended to last five years, the parties repeatedly agreed to extend her appointment until the final term expired on

December 31, 2018. See Rosie D. v. Baker, 2021 WL 2516082, at *1 n.4 (D. Mass. June 19, 2021). When the First Circuit held that Judge Ponsor had erred in extending the monitoring and reporting requirements beyond that date, it expressly opened the door for plaintiffs, on a showing of good cause,

to seek to modify this aspect of the Judgment. See Rosie D., 958 F.3d at 59. While ultimately unsuccessful in seeking to extend the monitoring and reporting requirements indefinitely, plaintiffs’ actions fell within the

ordinary (and invited) responsibilities of a party seeking to protect a final Judgment. The same pertains to the Timeliness Standards Motion. Although this court denied the motion, it took note of the fact that “[p]laintiffs have

produced evidence that children with SED often face significant delays in obtaining EPSDT services – in some cases as long as 12 weeks.” Rosie D., 2021 WL 2516082, at *4. In light of defendants’ voluntary adoption of the 14-day standard in 2012, it was reasonable for plaintiffs to seek to

institutionalize that standard after the First Circuit cleared the way for them to do so. See Rosie D., 958 F.3d at 59.

9 The Outpatient Therapy Motion, too, was reasonable. While the court ultimately found no evidence that children receiving outpatient

therapy were being denied services required under the Judgment, the court did not go so far as to say, nor does it say now, that plaintiffs’ efforts were unnecessary. The Outpatient Therapy Motion bears no resemblance to a non-compensable filing intended to run up fees gratuitously; plaintiffs

simply attempted to clarify the full set of services required under the Judgment before compliance was turned back over to the Commonwealth. The court thus concludes that plaintiffs are eligible for fees for all three of

their affirmative motions. b. Oppositions to Defendants’ Motions Plaintiffs 2018 Monitoring Opposition was both reasonable and necessary and is compensable. The First Circuit ruled that even though

plaintiffs ultimately lost on appeal, they were still eligible for appellate fees and costs. See First Circuit Order at 2 (“We find unavailing the Commonwealth’s arguments that the law in this Circuit or the facts of this case wholly preclude Plaintiffs from recovering § 1988 fees and costs for

work done on the instant appeal.”). Given the availability of appellate fees, plaintiffs are also eligible for fees and costs incurred in litigating the same

10 motion in the District Court, where they initially prevailed. Monitoring was at the core of the Judgment, and plaintiffs’ attorneys were obligated in the

ordinary course of their representation to oppose defendants’ (however justified) efforts to end it. That principle applies with even greater force to the 2021 Termination Opposition. Once a motion to terminate the Judgment was filed, plaintiffs’ lawyers had no option but to file an

opposition. c. Plaintiffs’ Monitoring Activities Defendants oppose any award of fees for the limited monitoring

activities plaintiffs’ attorneys engaged in after the monitoring provisions of the Judgment expired on December 31, 2018. On this issue, the court agrees with defendants. Once the provisions expired, plaintiffs’ authority to act under these provisions expired with it, however well-intentioned their

efforts. The court also notes that plaintiffs failed to seek the approval of the court to continue these activities despite the running of the clock. The court therefore will deduct the fees associated with these post-2018 monitoring activities in the amount of $44,450.00 as follows: $40,670.00 from the fees

allocated to the Center for Public Representation, $3,780.00 from the fees allocated to Frank Laski, and $0 from the fees allocated to WilmerHale.

11 d. Motion for Fees Defendants also ask the court to limit any award of fees related to their

motion for fees based on the motion’s success. However, the case they cite, Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978), runs counter to their position. See id. at 77 (“It would be inconsistent with the purpose of the Fees Act to dilute a fees award by refusing to compensate the attorney for the time

reasonably spent in establishing and negotiating his rightful claim to the fee.”). e. Lodestar

Defendants do not contest the reasonableness of the hourly rates for each of plaintiffs’ attorneys.2 Defendants also do not oppose any of the hours for which plaintiffs seek remuneration as duplicative, unproductive, or excessive. Instead, they contend that plaintiffs are ineligible for any fees

because the work they performed during the relevant period was, in defendants’ eyes, unsuccessful. To be sure, the degree of success obtained

2 The court notes that the WilmerHale attorneys have substantially reduced their ordinary hourly rates to $700 for partner Daniel Halston, $465 for senior associates Sonia Sujnani and Kevin Palmer, and $380 for junior associates James Bor-Zale and Disha Patel. See Dkt # 971-3. Plaintiffs’ public interest attorneys seek similar hourly rates, including $700 for experienced attorneys Steven Schwartz, Kathryn Rucker, Cathy Costanzo, and Frank Laski, $380 for litigation fellow Alex Schwartz, and $220 for paralegals Karen Detmers and Nicole Dill. See Dkt #971-2; Dkt # 971-4. 12 is a factor to be considered in a fee award. See Joyce v. Town of Dennis, 720 F.3d 12, 31 (1st Cir. 2013). Here, while the activities at issue were

unsuccessful, they need in fairness to be assessed in the context of the litigation as a whole, which no one argues was anything but a resounding success benefitting the children in need on whose behalf it was brought. While some reduction in fees for the lack of immediate success is

appropriate, the court is not prepared to make no award at all. After considering the relevant factors, the court concludes that some reduction in fees for lack of success is appropriate. Plaintiffs have already

excluded 25% of the hours their attorneys expended and then reduced the resulting lodestar by 10%. Given the lack of immediate success, the court concludes that a 20% reduction (i.e., an additional 10% on top of plaintiffs’ voluntary reduction) is more appropriate. Accordingly, the court finds

plaintiffs’ request for fees to be reasonable subject to the above-referenced reductions and will award total fees of $1,129,490.00. The court will also allow plaintiffs’ uncontested request for $654.00 in costs. ORDER

For the foregoing reasons, plaintiffs’ Motion for Attorneys’ Fees and Costs (Dkt # 970) is ALLOWED IN PART. Plaintiffs are awarded

13 $1,129,490.00 in fees and $654.00 in costs as follows: $950,911.20 in fees and $654.00 in costs to the Center for Public Representation, $122,604.80

in fees to WilmerHale, and $55,974.00 to Frank Laski.

SO ORDERED.

/s/ Richard G. Stearns __________ UNITED STATES DISTRICT JUDGE