Hensely v. Eckerhart Brief for Respondents

    No, 81-1244

In T he

Supreme (Emirt of t§z lofted ^tateo
O ctober Term, 1981

C. Duane H ensley, James K. Ritterbusch, 
H enry Bratkowski, E dward Tellez, 

and the current members o f the 
Missouri Mental Health Commission, 

Petitioners, 
v.

T homas Eckerhart, Ronald Ambach,
Rommie Jones, M ichael O ’Bradovich, and 

W ill Lester Thigpen, for themselves and all other persons 
similarly situated,

Respondents.

On Writ of Certiorari to the United States 
Court of Appeals for the Eighth Circuit

BRIEF FOR RESPONDENTS

Stanley J. E ichner 
Ann B. Lever 

Legal Services of 
Eastern Missouri, Inc.

P.O. Box 4999A, Field Station 
625 North Euclid 

St. Louis, Missouri 63108 
(314) 454-6860 

Attorneys fo r  Respondents

St. Louis Law Printing Co., Inc., 411 No. Tenth Street 63101 314-231-4477



QUESTION PRESENTED FOR REVIEW

W hether the district court complied with the standard 
prescribed by Congress in 42 U.S.C. §1988 when, in awarding 
attorneys’ fees to plaintiffs as prevailing party, it looked to the 
ultimate results achieved by the lawsuit and rejected the 
mechanical, mathematical approach urged by defendants?



Ill

TABLE OF CONTENTS

Page

Question Presented for Review .............................. .. i

Table of Authorities ..............................................................  iv

Statement o f the Case:

I. History of the L itig a tio n ....................................  2

II. Fees R e q u est..............................................    7

III. Fees Decision ................. ...................................... 9

Summary of the A rgum en t...................................................  11

A rg u m e n t...................................      15

I. On its facts, this case does not present the 
question o f whether an award o f attorneys’ 
fees should be reduced proportionate to the 
extent plaintiffs did not prevail because the 
plaintiffs in this complex litigation obtained 
substantial relief on virtually every material 
claim ........................................................................  17

II. The district court exercised its discretion in 
consonance with the standard prescribed by 
Congress in the Fees Act when it based its fee 
award on the ultimate results achieved in the 
case as a whole and rejected the mechanical, 
mathematical approach urged by the defen­
dants ......................................   32

A. The Fees Act authorizes attorneys’ fees 
to prevailing parties for all time 
reasonably expended on a m atter and re­
jects a proportional fee analysis.............. 32



IV

B. The Circuit Courts giving due considera­
tion to  the express instructions o f Con­
gress in the Fees Act have awarded a t­
torneys’ fees for all time reasonably ex­
pended on a m atter and rejected a pro­
portional fee analysis ................................  37

III. Congress found that strong public policy con­
siderations required a standard which awards 
attorneys’ fees for all time reasonably expended 
on a matter .....................................................  41

C o n c lu s io n ........................................      47

TABLE OF AUTHORITIES

Cases:

Alyeska Pipeline Service Co. v. Wilderness Society,
421 U.S. 240 (1975)................................................   37,38

Brown v. Bathke, 588 F.2d 634 (8th Cir. 1978) ............    39

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir. 1980),
en banc .......................................................   40

Crain v. City of M ountain Park , 611 F.2d 726 (8th Cir.
1979)............    39

Davis v. County of Los Angeles, 8 E .P .D . *[9444 (C.D.
Cal. 1974)...................................................... 12,32,33,34,35,39

Eckerhart v. Hensley, 475 F.Supp. 908 (W.D, Mo.
1979).....................................................................2,3,4,5,6,15,21

Gurule v. Wilson, 635 F.2d 782 (10th Cir. 1980), as 
amended on denial o f  rehearing, also at 649 F.2d 
754 (10th Cir. 1981).........................    39

H anrahan v. Ham pton, 446 U.S. 754 (1980) 12,22,32



V

Hughes v. Repko, 578 F.2d 483 (3rd Cir. 1978)...............  41

H utto v. Finney, 437 U.S. 678 (1978) ................................ 12,32

Johnson v. Georgia Highway Express, 488 F.2d 714 (5th
Cir. 1974)........................................................................  10,37

Jones v. Diamond, 636 F.2d 1364 (5th Cir. 1981) ........... 40

Lam phere v. Brown University, 610 F.2d 46 (1st Cir.
1979)  ......................................................................  40

Littlefield v. Deland, 641 F.2d 729 (10th Cir. 1981) . . . . .  39,40

M aher v. Gagne, 448 U.S. 122 (1980)........................... .... 12,22,32

40 

40 

22,40

447 U.S. 911 (1980) ......................... .....................13,38,41,43

Parham  v. Southwestern Bell, 433 F.2d 421 (8th Cir.
1970)  ................. ............................................................. 22

Planned Parenthood v. Ashcroft, 655 F.2d 848 (8th Cir.
1981)........................................................... ..................... 39

Reproductive Health Services v. Freeman, 614 F.2d 585
(8th Cir. 1980)............... .............. ............ .................. .. 39

Ross v. Horn, 598 F.2d 1312 (3rd Cir. 1979), cert, denied,
448 U.S. 906 (1 9 8 0 ) .. .................................... 22

Seals v. Quarterly County Court, 562 F.2d 390 (6th Cir. 
1977)......................... .......................................................

M anhart v. City of Los Angeles, Departm ent o f W ater, 
652 F.2d 904 (9th Cir. 1981)........................................

Muscare v. Quinn, 614 F.2d 577 (7th Cir. 1 9 8 0 ) . . . . . . . .

Nadeau v. Helgemoe, 581 F .2d 275 (1st Cir. 1 9 7 8 ) .........

Northcross v. Board of Education o f Memphis City 
Schools, 611 F.2d 624 (6th Cir. 1979), cert, denied,

41



VI

Seattle School District No. 1 v. State of W ashington,
633 F.2d 1338 (9th Cir. 1980)......................................  40

Seigal v. Merrick, 619 F.2d 160 (2nd Cir. 1980)...............  40,44

Sethy v. Alameda County W ater District, 602 F.2d 894
(9th Cir. 1979), cert, denied, 444 U.S. 1046 (1980) . 40

Sherkow v. State of Wisconsin, 630 F.2d 498 (7th Cir.
1980).................................................................    40

Stanford Daily v. Zurcher, 366 F. Supp. 18 (N.D. Cal.
1973) , a ff’d, 550 F.2d 464 (9th Cir. 1977) ...........  35

Stanford Daily v. Zurcher, 64 F.R .D . 680 (N.D. Cal.
1 9 74 ) ............................................................. 12,32,33,34,35,43

Walker v. Robbins Hose Co. No. 1, Inc., 622 F.2d 692
(3rd Cir. 1980) ...................      41

Statutes and Miscellaneous Authorities

Title 42 U.S.C. §1988 ..........................  passim

S. Rep. No. 94-1011, 94th Cong., 2d Sess. 1 (1976)......... 11
12,21,22,32,34,35,37,42,43,44 

H. Rep. 94-1558, 94th Cong., 2d Sess. 1 (1976) . .22,32,37,38,42 

Code of Professional Responsibility

EC 7-19............................................................................  43

EC 7 -3 ............................................................................... 43



No. 81-1244
In The

Supreme Okmrt nf %  Mnitzb States
October Term, 1981

C. Duane H ensley, James K. Ritterbusch, 
H enry Bratkowski, Edward Tellez, 

and the current members o f the 
Missouri Mental Health Commission,

Petitioners,
v.

Thomas Eckerhart, Ronald Ambach,
Rommie J ones, M ichael O ’Bradovich, and 

W ill Lester Thigpen, for themselves and all other persons 
similarly situated,

Respondents.

On W rit o f Certiorari to the United States 
Court of Appeals for the Eighth Circuit

BRIEF FOR RESPONDENTS

STATEM ENT OF TH E CASE

Plaintiffs find it necessary to present a separate statement of 
the case. The linchpin o f defendants’ argument in this case is a 
confused identification o f factual issues with legal claims. That 
identification is first made in their statement o f the case which 
relies centrally on a pre-trial order listing facts at issue in the
case.



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I. History of the Litigation

This lawsuit was brought by and on behalf of patients involun­
tarily confined to  the Forensic Unit, Fulton State Hospital, who 
sought to secure their constitutional right to  a minimally ade­
quate treatm ent environm ent.1 The action as originally filed 
consisted o f a three-count complaint. Count I sought 
declaratory and injunctive relief regarding treatm ent and condi­
tions in the Forensic Unit. Count II attacked defendants’ prac­
tice and policy o f placing patients in the Forensic Unit without 
procedural due process. Count III challenged defendants’ prac­
tices and policies regarding institution-maintaining labor.

Count II o f the original complaint was resolved by a consent 
decree filed in December, 1973, which secured essentially all the 
relief sought by plaintiffs in that count. The decree provided, 
inter alia, that defendants would provide due process hearings 
in connection with the placement of patients in the Biggs 
Building. (A 22-28).

Much of the relief sought by plaintiffs in Count III of the 
original complaint was accomplished by a modified policy on 
institutional labor adopted by the defendants.2 Defendants

1 Located in central Missouri, Fulton State Hospital is the state’s 
only forensic medical hospital. The Forensic Unit consists of two 
residential units — the Marion O. Biggs Building for the Criminally 
Insane and the Rehabilitation Unit. The Biggs Building is the only unit 
of the Missouri Department of Mental Health which houses solely 
maximum security patients (A 89). All of the Forensic Unit residents 
are male (A 90), and the majority are persons found not guilty by 
reason of mental disease or defect or involuntarily committed by the 
probate court. Eckerhartv. Hensley, 475 F.Supp. 911,912 (W.D. Mo. 
1979) (A 172).

2 The District Court noted in its Order of August 2, 1974, that 
defendants had changed their policy on institution-maintaining labor 
at least “partially in response to . . . [plaintiffs’] request for a 
preliminary injunction.”



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agreed to  compensate patients for institution-maintaining labor 
as then required by the Fair Labor Standards Act. Plaintiffs 
then voluntarily dismissed Count III o f the complaint and thus 
dropped the remaining claim for compensation for past 
institution-maintaining labor perform ed by patients (A 48-54') 3 

The treatm ent environment challenged in Count I o f the com­
plaint was also modified during the pendency o f the litigation. 
In January, 1975, the Missouri Departm ent of M ental Health 
adopted Operating Regulation No. 149 which required that a 
written, individualized treatm ent plan for each patient must be 
prepared within five days after admission. Eckerhart v. 
Hensley, supra, 475 F. Supp. at 921 n. 43 (A 192). The defen­
dants in September, 1977, similarly altered certain challenged 
mail policies. Previously, all incoming mail had been opened 
outside the presence o f the patient-addressee and searched for 
contraband. All outgoing mail, except that addressed to “  ‘any 
official, lawyers, e tc .’ was read and censored by hospital s ta ff.” 
Eckerhart v. Hensley, supra, 475 F. Supp. at 924n. 55 (A 198). 
Under the new policy, incoming mail from  attorneys or officials 
would be opened only in the presence of the addressee while all 
outgoing mail could be sealed by patients without official 
screening. In the area o f the staffing, the num ber o f the treat­
ment personnel also increased while the litigation was pending. 
W ithin the Biggs Building alone, the number of full-time nurses 
increased from  l 4 to 4 (A 113-4), full-time psychologists from  25 
to  5 (A 106-7), and psychiatric aides from 606 to 141 (A 120-1).7

3 By the time plaintiffs dismissed Count III, the original lawsuit 
had been dismissed and refiled under separate title and number (A 
32-47).

4 Deposition of Dr. Bratkowski taken on November 17, 1976, at 12.

5 Id. at 13.

6 Id. at 39.

7 Evidence in the record indicates that at least some of the changes, 
such as staffing (see testimony of Dr. Ritterbusch, infra at 20), were 
prompted by the lawsuit.



4 —

On August 3, 1977, plaintiffs filed an amended one-count 
complaint which alleged specific factual conditions violating 
minimum constitutional standards. On the basis o f that single 
count, trial commenced on April 30, 1979, and lasted nearly 
three weeks (A 3-6). During the trial, plaintiffs called ten 
witnesses, five o f whom were experts, defendants called nine­
teen witnesses, five o f whom were experts (A 3-6), and the court 
received hundreds of exhibits.8 The district court entered its opin­
ion on the merits on August 11, 1979, Eckerhart v. Hensley, 
supra, 475 F. Supp. at 908 (A 170-207).

In its substantive decision the court held that involuntarily 
committed mental patients at a maximum-security institution 
had a constitutional right to receive treatm ent. Defendants 
argued against any relief to the plaintiff class because, they 
claimed, there was no constitutional right to treatm ent for the 
subject population. Thus, the plaintiffs had to establish the ex­
istence o f the right to treatm ent prior to litigating the various 
aspects of that right. Recognizing that “ confinement in a state 
mental hospital absolutely forecloses receipt o f any treatm ent 
except that which the state chooses to provide,”  Eckerhart v. 
Hensley, supra, 475 F. Supp. at 914 (A 177), (emphasis in 
original), the district court concluded that such patients were, if 
susceptible to treatm ent, entitled to  “ such treatm ent as will give 
each of them a reasonable opportunity to  be cured or to im­
prove his mental condition.”  Id. at 914 (A 178). The court also 
adopted plaintiffs’ position that the essential elements o f con­
stitutionally adequate treatm ent included a hum ane physical 
and psychological treatm ent environment, sufficient num ber of 
qualified staff, and an individualized treatm ent plan for each 
patient, id. at 915 (A 179).

8 Defendants’ “ Memorandum in Opposition to Attorneys Fees,” 
(hereinafter “ memo. opp. fees” ) at 11.



Based upon extensive expert testimony presented by witnesses 
for both the plaintiffs and the State o f Missouri, the district 
court then analyzed various aspects o f the conditions o f con­
finement at the hospital in light o f their impact upon the treat­
ment potential o f patients. The district court found various con­
stitutional violations in the conditions at the Forensic U nit.9 
Specifically, the court analyzed the six areas of policy and prac­
tice set out in plaintiffs’ complaint, identified constitutionally 
inadequate conditions in five areas and subsequently ordered ap­
propriate relief.10

(1) Physical Environment: The court concluded that condi­
tions in the following areas were not minimally adequate to p ro­
vide patients in the Biggs Building with the constitutionally re­
quired treatm ent environment — (a) poor climate control; (b) 
insufficient personal privacy in lavatories and bathroom s; (c) 
deficient patient privacy and security in the sleeping dor­
mitories; and (d) sparse furnishings and space for individual 
belongings, Eckerhart v. Hensley, supra, 475 F. Supp. at 916-9 
(A 180-8). An extensive renovation plan was ordered to address 
all o f these physical inadequacies. (A 275-6).

(2) Staff: By the trial date, the size o f the treatm ent staff, 
which had markedly increased during the pendency of the 
lawsuit, was found to be minimally adequate, Eckerhart v. 
Hensley, supra, 475 F. Supp. at 920 (A 188-91).

—  5 —

9 The district court emphasized that its analysis of the Forensic Unit 
was based upon a “minimally adequate” standard of treatment, id at 
915-6 (A 179-180).

10 The district court directed defendants to submit a remedial pro­
posal. After reviewing the proposal and requiring some adjustments in 
it, (A 274-82), the court entered its Order Regarding Remedy on 
August 27, 1980, (hereinafter O.R.R.).



—  6 —

(3) Individual Treatm ent Plans: The long delay after admis­
sion in preparing initial treatm ent plans and the absence of 
regular, substantive review o f such plans denied patients 
minimally adequate treatm ent, Eckerhart v. Hensley, supra, 475 
F. Supp. at 921-922 (A 191-3). A  three-part timetable was 
established for preparation o f the plans, a 90-day time period 
was set for periodic review of the plans, and a Building M onitor 
was created to  insure compliance with the deadlines. (A 276-7).

(4) Least Restrictive Environment: The long delay between 
the recommendation for a less restrictive environment and the 
time of actual transfer was found to  be inconsistent with due 
process requirements, Eckerhart v. Hensley, supra, 475 F. 
Supp. at 922 (A 193-5). A  minimum timetable was established 
for the transfer o f patients. (A 278-9; O .R .R . 1-2, 7).

(5) Visitation, Telephone and Mail: The visitation and 
telephone policies at the Forensic Unit were so overly restrictive 
as to  constitute punishment and therefore were violative o f pa­
tients’ due process rights. Eckerhart v. Hensley, supra, 475 F. 
Supp. 923-5 (A 195-201). M ore liberal visitation and telephone 
policies were ordered (A 279-80; O .R .R . 4). The mail policy 
which had been modified during the pendency o f the litigation 
was upheld, Eckerhart v. Hensley, supra, 475 F. Supp. at 925 (A 
201) .

(6) Seclusion and Restraint: Defendants’ policies designed to 
m onitor medical decisions ordering seclusion or restraint were 
not sufficiently implemented to  afford patients minimal due 
process. Specific guidelines and procedures were ordered to in­
sure that defendants’ practices complied with established 
policies. (A 281). The court also concluded that the unavailability 
of minimal due process procedures when seclusion was to be used 
as a disciplinary measure violated patients’ constitutional rights, 
Eckerhart v. Hensley, supra, 475 F. Supp. at 926-8 (A 201-7). 
The establishment of minimal due process procedures was 
ordered. (A 281-2; O.R.R. 5-6). The district court also addressed



—  7 —

the over-medication issue within this portion o f its opinion, and 
found that the patients were not over-medicated.

Defendants did not appeal the district court’s substantive 
decision or its orders granting the attendant relief.

II. The Fees Request

On February 26, 1980, plaintiffs submitted their request for 
attorneys’ fees, accompanied by affidavits and m em oranda (A 
208-71). Throughout the lawsuit, plaintiffs have been 
represented by Legal Services o f Eastern Missouri (hereinafter, 
LSEM), a non-profit legal aid organization. The representation 
was provided primarily by three LSEM attorneys — Stuart R. 
Berkowitz, Michael Bastian, and William A. Hyde. Professor 
Ronald Carlson of W ashington University also participated in 
p laintiffs’ representation (Pet. App. at A 4).

Based on the time spent preparing and trying the lawsuit, 
plaintiffs requested an award o f $150,477.85", plus costs. They 
did not seek compensation for any time expended prior to 1975 
or for the work contributed by other LSEM staff attorneys, 
paralegals, law clerks, and support staff, (Pet. App. B at A 4, 
n.4).

Defendants in June, 1980, filed a “ M emorandum in Opposi­
tion to Plaintiffs’ Attorneys’ Fee Request” (Cert. doc. ent. at 
13). In their m em orandum , defendants made a series of 
arguments suggesting that the fee award should be either reduced 
or denied altogether. They argued, in part: (1) the applicability 
of a “ public interest discount,”  (Memo. opp. fees at 22); (2) the

11 The components of the requested award were:
Attorney Hours Mate Per Hour Total

Mr. Berkowitz 817.50 $65.00 $53,137.50
Prof. Carlson 214.75 $65.00 $13,958.75
Mr. Bastian 524.60 $50.00 $26,230.00
Mr. Hyde 1428.79 $40.00 $57,151.60



— 8 —

unreasonableness o f the entire fee request, thereby urging a 
total denial o f fees for time submitted by Hyde and Carlson and 
a seventy percent reduction for Berkowitz and Bastian, id at 24; 
and (3) that because the entire fee request was unreasonable, the 
court should refuse to award any fees whatsoever, id. at 40. 
Defendants also requested the reopening of discovery for the 
limited purpose o f developing evidence on the attorneys’ fees 
issue. Although their request was granted on July 17, 1980, (A 
7), defendants never undertook any such discovery.

On October 16, 1980, the district court held an evidentiary 
hearing on the attorneys’ fees request. In lieu o f live testimony, 
plaintiffs offered into evidence the affidavits and time sheets a t­
tached to their m otion for attorneys’ fees (Transcript of A t­
torneys’ Fees Hearing at 4) (hereinafter, AFT). The defendants 
made no objection to the admission of that material, and the 
court received it into evidence, (AFT at 4). After the court had 
taken “judicial notice of the entire case file for those purposes . . . 
pertinent to determination o f reasonable attorneys’ fees”  and 
excluded two m inor exhibits, plaintiffs closed their portion of 
the hearing, (AFT at 10).

Except for three exhibits which were not relevant to the issue 
before this co u rt,12 defendants did not offer any evidence at the 
attorneys’ fees hearing, (AFT at 10-13). The remainder of the 
hearing consisted o f oral argument by the parties, (AFT at 13).

12 The three exhibits arguably went to support defendants’ argu­
ment, now abandoned, that there should be a “ public interest dis­
count,” i.e. that a fee award should be tied to the “ actual cost” to the 
program of providing the representation. Exhibit 1 was a letter which 
set forth LSEM’s budget for the years in question. Exhibit 2 was a let­
ter from the program to Professor Carlson, indicating that he would 
receive any fees awarded for his time. Exhibit 3 was a statement of the 
salaries paid to Berkowitz, Bastian, and Hyde in the years for which 
they sought fees. (AFT at 10-12). Plaintiffs produced the materials by 
agreement. No other information was sought or produced by way of 
any discovery devices, (cert. doc. ent. 12-14), and none was offered into 
evidence by defendants, (AFT 10-13).



—  9 —

III. The Fees Decision

On January 23, 1981, the district court issued its m em oran­
dum and order awarding attorneys’ fees to plaintiffs. In several 
steps, the court analyzed plaintiffs’ entitlement to  attorneys’ 
fees and the reasonableness o f the award.

The court first considered whether plaintiffs were the prevail­
ing parties under the terms o f the Fees Act and eligible for a 
reasonable attorney’s fee, (Pet. App. B at A  5). In light o f the 
“ relief afforded plaintiffs in the areas o f physical environment, 
individual treatm ent plans, least restrictive environment, visita­
tion and telephone privileges, and seclusion and restraint prac­
tices,”  the district court concluded that plaintiffs were the 
prevailing party under §1988, (Pet. App. B at A 6).

The “ substantial” relief obtained by plaintiffs at trial was 
“ sufficient in itself to  classify them as prevailing parties without 
the need o f examining those issues disposed o f prior to trial in 
order to determine which went in plaintiffs’ favor,”  (footnote 
omitted) (Pet. App. B at A 7). Finding no “ special cir­
cumstances”  making such an award unjust, the court held that 
plaintiffs were entitled to reasonable attorneys’ fees, (Pet. App. 
B at A  6).

The district court then addressed defendants’ contention that 
the fee award should be proportionate to the extent plaintiffs 
prevailed. Essentially, defendants had argued that the court 
“ should look at the total num ber o f issues raised during the en­
tire course o f this litigation, compare that number with the 
issues on which plaintiffs actually prevailed at trial, and then 
award attorneys’ fees only for time spent by plaintiffs on the 
issues on which they prevailed,”  (Pet. App. B at A 7). However, 
the court found that such “ a mathematical approach comparing 
the total number of issues in the case with those actually prevailed 
upon” left no room  to consider “ the relative importance of 
various issues, the interrelation o f issues, the difficulty in identi­



—  10 —

fying issues, or the extent to which a party may prevail on 
various issues,”  (Pet. App. B at A  7-8). Therefore, the district 
court rejected the argument that “ an award o f attorneys’ fees 
should be tied solely to those issues prevailed up o n ,”  (Pet. App. 
B at A  8).

Finally, the court analyzed each o f the twelve Johnson v. 
Georgia Highway Express factors to determine the am ount o f a 
reasonable fee, 488 F.2d 714 (5th Cir. 1974). After reviewing the 
attorneys’ affidavits, the court reduced the compensable hours 
o f one attorney .13 Except for that single adjustm ent, the district 
court found that the submitted hours were reasonable and non- 
duplicative, (Pet. App. B at A  13-14). The hourly rates re­
quested for each attorney14 were found to be well within the 
customary range o f fees, accurately reflective o f the respective 
abilities of counsel, and reasonable in all other respects, (Pet. 
App. B at A 18-19). As a result of its analysis, the district court 
awarded plaintiffs attorneys’ fees in the am ount o f $133,332.25 
and costs in the am ount o f $15,177.40.

In a per curiam unreported decision filed September 28,1981, 
the United States Court o f Appeals for the Eighth Circuit a f­
firmed the award, concluding that the district court’s decision 
was neither clearly erroneous as to its factual determinations 
nor mistaken as to the law as it was applied to the facts, (Pet. 
App. A at A  2).

13 Mr. Hyde’s hours were reduced by 30% based in part on the lack 
of contemporaneous time records and his relative inexperience, (Pet. 
App. B at A 13).

14 See note 11 supra.



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SUMMARY OF TH E ARGUM ENT

I.

On its facts, this case simply does not present the question of 
whether a fee award should be proportioned to  the extent plain­
tiffs prevailed. Application o f the proportionality form ula pre­
supposes that plaintiff failed to obtain relief on one or more 
substantial claims. Since plaintiffs won court-ordered relief or 
elicited remedial actions from defendants on virtually all 
material claims advanced, the proportionality issue is not framed 
by this suit.

Plaintiffs proceeded to trial on a one-count complaint asser­
ting plaintiffs’ constitutional right to minimally adequate treat­
ment and challenging certain limited aspects o f the treatm ent 
environment provided by defendants. Holding that the Forensic 
Unit patients had a constitutional right to  treatm ent, the district 
court found that the treatment environment was constitutionally 
inadequate in five particular areas — physical environment, in­
dividual treatm ent plans, least restrictive environment, visita­
tion, telephone and mail policies, and seclusion and restraint — 
and ordered relief in each area. In the area o f staffing, court- 
ordered relief was unnecessary because plaintiffs’ lawsuit had 
prom pted defendants to take remedial actions. The “ catalytic 
role”  which the lawsuit played with respect to defendants’ 
remedial actions is established by testimony from defendants’ 
own witness.

The legislative history o f the Fees Act makes clear that the 
catalytic effect of a lawsuit is a sufficient basis for awarding a t­
torneys’ fees, S.Rep. No. 94-1011, 94th Cong., 2d Sess., 5 
(1976). When the court-ordered relief is combined with the 
remedial actions caused by the suit, it is clear that plaintiffs 
prevailed on practically every material claim. Since plaintiffs 
succeeded in obtaining relief on virtually all material claims, the 
proportionality issue — with its assumption that at least to some 
extent plaintiffs did not prevail — is not presented by this case.



12 —

II.

A. The fees decision o f the district court, based in part on the 
ultimate results achieved in the case as a whole, was completely 
consonant with the standards and guidelines prescribed by Con­
gress in the Fees Act. The Fees Act is a broad Congressional 
charter authorizing courts to  award fees to prevailing parties in 
civil rights litigation. In the legislative history accompanying the 
Act, Congress provided the courts with more detailed and 
thorough directives on applying the fee-shifting remedy. That 
legislative history has been authoritatively cited by this Court. 
See Maher v. Gagne, 448 U.S. 122 (1980); Hanrahan v. Hamp­
ton, 446 U.S. 754 (1980); Hutto v. Finney, 437 U.S. 678 (1978).

The legislative history expressly provides that in determining 
an appropriate fee award under the Act, “ counsel for prevailing 
parties should be paid 'for all time reasonably expended on a 
matter, ’ ”  S. Rep. No. 94-1011, 94th Cong., 2d Sess. 6 (1976) 
(quoting Davis v. County o f  Los Angeles, 8 E .P .D . f9444(C .D . 
Cal. 1974) (emphasis added). Congress further indicated that 
the proper standard had been applied in Davis and Stanford 
Daily v. Zurcher, 64F .R .D . 680 (N.D. Cal. 1974). By endorsing 
the fees analysis in those two cases, Congress explicitly rejected 
the proportionality theory which defendants urged on the 
district court in this case. Rather, Congress approved a m ethod 
o f fees analysis in which the court first determines the prevailing 
party and then, by looking at the case as a whole, evaluates what 
time was reasonably expended on a m atter. Under the standard 
prescribed by Congress, legal services for a prevailing party are 
reasonably expended unless they were spent pursuing a) claims 
“ in bad faith” ; b) “ clearly meritless claims” ; or c) claims so 
wholly unrelated, causes o f action so clearly separate, or issues 
so distinguishable and discrete that the time involved in 
litigating them in no way contributed to the “ ultimate result 
achieved.”  Like the courts in Davis and Stanford Daily, the 
district court here found a mathematical proportionality theory



—  13 —

unacceptable. It instead looked at the case as a whole and con­
sidered the time spent on claims in light o f the overall results ob­
tained. Its m ethod of analysis was thus fully consistent with the 
intent o f Congress in the Fees Act.

B. Because o f Congress’ exclusive authority to allow a t­
torneys’ fees, the expressions o f legislative intent and purpose 
recorded in the statutory history o f the Fees Act deserve par­
ticular weight and attention. Every circuit court giving due 
weight to the expressions of Congressional intent in the 
legislative history of the Fees Act has rejected a proportionality 
theory. As the Sixth Circuit recognized in Northcross v. Board 
o f Education o f Memphis City Schools, 611 F.2d 624, 632 (6th 
Cir. 1979), cert, denied, 447 U.S. 911 (1980), the Congressional 
standard o f awarding fees “ for all time reasonably spent on a 
m atter”  is especially compelling because “ the courts are 
obligated to  apply the standards and guidelines provided by the 
legislature in making an award of fees.”

III.

Reflected in the legislative history o f the Fees Act are matters 
of public policy which Congress considered in determining the 
appropriate standard for fee awards under the Act. Congress 
prescribed the standard o f awarding attorneys’ fees for all time 
reasonably expended because that standard promotes vigorous 
private enforcement o f civil rights laws, encourages compliance 
with both the letter and spirit o f professional ethical considera­
tions, and facilitates judicial economy and efficiency. In con­
trast, the proportionality theory would discourage precisely the 
zealous representation intended by the Fees Act and required by 
the Code of Professional Responsibility. In addition, that 
theory would either overwhelm the court in an endless inquiry 
trying to separate the time spent on interrelated issues or else 
lead it to apply a mathematical form ula incapable of measuring 
the interrelation o f issues and their contribution to the ultimate 
results achieved in this case.



14 —

The Congressional standard, on the other hand, allows the 
district court to exercise its discretion in a framework which 
takes into account the overall result o f  the suit and the contribu­
tion o f various claims to that result. The fee award of the 
district court in this case was fully consistent with the guidelines 
provided by Congress.



—  15 —

ARGUMENT

The issue presented here is whether the district court exercised 
its discretion in consonance with Congressional intent when it 
awarded fees based in part on the ultimate results achieved in 
the case as a whole and rejected defendants’ contention that fees 
should be proportioned on a mathematical basis to  only those 
issues resulting in court-ordered relief.

A t the time of trial, plaintiffs’ lawsuit challenged in a single­
count complaint the constitutional adequacy o f the treatm ent 
environment at M issouri’s forensic mental health institution. In 
their brief, defendants have suggested that the suit took a 
“ shotgun”  approach attacking every conceivable condition of 
the mental institution. To the contrary, there was only one 
claim at issue by the time o f trial — whether the Forensic Unit 
patients had a constitutional right to receive treatm ent which 
would ‘ ‘give each of them a reasonable opportunity to be cured 
or to improve his mental condition,”  Eckerhart v. Hensley, 
supra, 475 F.Supp. at 914 (A 378). The factual contentions in 
plaintiffs’ last amended complaint were directed simply to par­
ticular deficiencies in that treatm ent environment. Plaintiffs did 
not fire random ly at the panoply o f conditions and practices — 
diet, sanitation, housekeeping —- in the Forensic Unit. Rather, 
they focused narrowly on those conditions affecting adequate 
treatm ent. Since those conditions o f treatment were necessarily 
interrelated, the lawsuit, from  pre-trial preparation through 
trial on the merits, was seen, heard and resolved as a single m at­
ter.

In its decision on the merits, the district court found various 
violations o f the Eighth and Fourteenth Amendments as well as 
42 U .S.C. §1983 and later ordered substantial relief to remedy 
those violations. Throughout their brief, defendants seek to re­
litigate and thereby to minimize the extent to which plaintiffs 
prevailed on their challenge to the inadequate treatment afforded



— 16 —

patients at the Forensic U n it.15 A  comparison o f plaintiffs’ 
claims with the relief ordered by the court and the remedial ac­
tions taken by defendants over the course o f the litigation 
establishes beyond any doubt that plaintiffs obtained relief on 
virtually every material claim. Recognizing the far-reaching 
results achieved by plaintiffs’ case as a whole, the district court 
concluded that:

The significance o f this case cannot be measured in terms 
o f dollars and cents. It involves the constitutional and civil 
rights o f the plaintiff class and resulted in a num ber of 
changes regarding their conditions and treatm ent at the 
state hospital . . . .  P laintiffs’ relief affects not only them 
but also numerous other institutionalized patients similarly 
situated. (Pet. App. B at A 16.)

The court subsequently awarded plaintiffs’ counsel attorneys’ 
fees pursuant to the Civil Rights A ttorneys’ Fees Awards Act of 
1976, 42 U .S .C . §1988 (hereinafter, the Fees Act or §1988).16 In 
light o f the ultimate results achieved on the interrelated claims 
at issue, the district court’s fee award meets the standard for a 
reasonable attorneys’ fee prescribed by Congress in the 
legislative history of the Fees Act.

15 Significantly, defendants concede that plaintiffs are the prevail­
ing party and therefore have not presented that issue for review here.

16 The Fees Act provides in pertinent part:
In any action or proceeding to enforce a provision of sections 

1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public 
Law 92-318, or title VI of the Civil Rights Act of 1964, the court, 
in its discretion, may allow the prevailing party, other than the 
United States, a reasonable attorney’s fee as part of the costs. 42 
U.S.C. §1988.



—  37 —

I. On Its Facts, This Case Does Not Present The Question Of 
Whether An Award Of Attorneys’ Fees Should Be Reduced 
Proportionate To The Extent Plaintiffs Did Not Prevail 
Because The Plaintiffs In This Complex Civil Rights Litigation 
Obtained Substantial Relief On Virtually Every Material Claim.

On its facts, this case simply does not present the question of 
whether a fee award should be proportioned to  the extent plain­
tiffs prevailed. Application o f the proportionality form ula 
presupposes that plaintiffs have failed to  obtain relief on one or 
more substantive claims. Since the plaintiffs in this case won 
court-ordered relief or elicited remedial actions from  defendants 
on nearly every material claim advanced, the proportionality 
issue is not framed by this suit.

In its opinion on the merits, the district court found constitu­
tional violations in five out o f the six categories o f inadequate 
treatm ent alleged in plaintiffs’ final com plaint.17 Those six 
categories were: (1) physical environment; (2) staffing; (3) in­
dividual treatm ent plans; (4) least restrictive environment; (5) 
visitation, telephone and mail; and (6) seclusion and restraints. 
Staffing was the only category in which the court found no con­
stitutional violation, but in that area plaintiffs’ lawsuit had 
prom pted defendant to take significant remedial actions.

17 Plaintiffs’ final complaint (A 71-80) included only twelve 
paragraphs which even arguably contained allegations of inadequate 
treatment. The district court in its substantive decision reorganized 
those allegations into six general categories. As demonstrated by the 
chart, infra at 25-31, the court’s categories faithfully mirror the treat­
ment allegations in plaintiffs’ pleading.

Defendants repeatedly cite to the Pretrial Order Number 2 prepared 
by the parties. Plaintiffs question the appropriateness of using that 
pleading as a point of reference. Defendants’ suggestions fail to 
distinguish between “ factual issues” and “ claims” . At best, the 
pretrial order consists of various alternative formulations of factual 
issues in the lawsuit. This statement of issues is to be distinguished 
from a party’s legal claim. In this lawsuit, plaintiffs’ legal claim was 
that defendants were denying plaintiffs their constitutional right to 
receive treatment.



—  18 —

After finding constitutionally inadequate treatm ent in five of 
those six categories, the district court ordered relief to  remedy 
conditions in each o f those five areas.

1. Physical Environment: To remedy climatic conditions in 
the Biggs Building, the court ordered installation of new heating 
and cooling systems. Completion o f the three-phase project 
would provide improved heating and cooling for eleven patient 
wards as well as for the therapy, treatm ent, recreation, ad­
ministrative, kitchen and dining areas o f the facility (A 275-6). 
In order to  increase patient security and privacy, windows and 
security screens were to be replaced, toilet facilities remodeled, 
and seven sleeping dormitories partitioned into individual 
rooms (A 275-6). Additionally, defendants were directed to p ro ­
vide furnishings for all individual patient rooms in the Biggs 
Building (A 276).

2. Individual Treatment Plans: To prevent delays in prepar­
ing initial treatm ent plans, the court ordered implementation of 
a three-step planning procedure with specific timetables for each 
step. An initial treatm ent plant — essentially, an admissions 
checklist — had to  be prepared within five working days o f the 
patient’s admission. A  more specific, intermediate treatm ent 
plan would be completed in the next fourteen working days. 
The final treatm ent plan with defined treatm ent goals, staff 
assignments and achievement date, had to be developed in the 
ten ensuing working days. To establish regular review, this goal- 
directed treatm ent plan was to be formally reviewed every nine­
ty days. In addition, a Building M onitor was charged with insur­
ing compliance with the plan development timetable and the 
review schedule. (A 276-7).

3. Least Restrictive Environment: To eliminate the historical 
pattern of long delays in transferring Biggs patients to the less 
restrictive environment of the Rehabilitation Unit, the court re­
quired that such transfers take place within ten working days 
after the determination o f patient eligibility. The court further



—  19 —

ordered development o f specific timetables for the transfer o f 
eligible mentally retarded residents and other approved Forensic 
Unit patients to less restrictive facilities, (A 278-9); O .R .R . 1-2).

4. Visitation and Telephone Use: The existing visitation 
room  in the Biggs Building was to be remodeled, and a new 
room  allowing for less structured visitation was to be con­
structed. Expansion of visitation hours was ordered, and 
restrictions on visits by children were liberalized. The court also 
required modification o f defendants’ restrictions on telephone 
use. (A 279-80; O .R .R . 4).

5. Seclusion and Restraint: Regarding medical decisions on 
the use o f seclusion and restraints, the court laid out specific 
guidelines to  insure that defendants implemented their own 
policies governing those decisions. Where seclusion was used for 
disciplinary purposes, the court ordered implementation of 
minimum due process procedures including written notice, a 
hearing before a three-person panel, and a written opinion by 
the fact-finder, (A 281-2, O .R .R. 5-6).

Plaintiffs thus obtained court-ordered relief in five of the six 
categories o f inadequate treatm ent.

Court-ordered relief in the area o f staffing was unnecessary 
because the lawsuit had prom pted defendants to take remedial 
actions in that area. Over the course o f the litigation, the size of 
the treatm ent staff had increased dramatically. In the Biggs 
Building, for example, the num ber of full-time nurses quadru­
pled while the number o f psychiatric aids and full-time 
psychologists more than doub led .'8 As a result, the court found 
that by the time o f trial, staffing levels were not constitutionally 
insufficient, (A 190-1).

D efendants’ own testimony establishes the relationship 
between the litigation and their remedial actions. During the



— 20 —

May 9, 1979 cross-examination o f Dr. James K. Ritterbusch, 
Superintendent of Fulton State Hospital, plaintiffs’ counsel ex­
amined the witness about the hospital’s most recent funding re­
quest to  the legislature.18 19

Q: Doctor, under objectives it states:

. . . “ The Forensic Unit is at present involved in 
defending a class action lawsuit from  the Legal Aid 
Society o f St. Louis. To successfully defend this 
lawsuit, the A ttorney General has advised us that we 
must completely implement these individual treatment 
plans as soon as possible. The additional personnel 
and clerical staff and equipment used for their sup­
port are necessary to  meet this dem and.”

Do you recall that statement, Doctor?

A: Yes, Sir.

Q: That statement was contained in the budget request,
was is not?

A: Yes, Sir.

*  *  *

Q: And, you asked for this additional personnel in the
context of this lawsuit, did you not?

A: Yes, Sir.

(Ritterbusch cross-examination at 32-3.)

The key role o f the lawsuit in causing defendants to enlarge the 
Forensic Unit S taff was thus established.

18 See supra, p. 3.
19 Plaintiffs’ Exhibit 793.



—  21 —

During the lawsuit, defendants undertook remedial actions in 
two other areas, but their actions did not obviate the need for 
court-ordered relief in those categories.20 In the area of in­
dividual treatm ent plans, the defendants did not adopt a policy 
requiring such plans until January, 1975 — after commence­
ment of the lawsuit, (A 191-2). A lthough the quality o f those 
plans had reached the level o f minimum adequacy by 1979, the 
long delays in preparing and reviewing them remained constitu­
tionally deficient, (A 192-3). The testimony o f Dr. Ritterbusch, 
quoted above, also illustrates the catalytic role o f plaintiffs’ suit 
in improving patient treatm ent plans. In the visitation, 
telephone and mail category, defendants significantly modified 
their mail policy over the course o f the litigation. Prior to  1977, 
all incoming mail was opened and checked for contraband out­
side the patient’s presence, while all outgoing mail, except that 
addressed to “ any official, lawyer, e tc .”  was censored by 
hospital staff, Eckerhart v. Hensley, supra, 475 F. Supp. at 
924, n. 55 (A 198, n. 55). Defendants altered their policy to  per­
mit all outgoing mail to remain sealed and to allow some incom ­
ing mail to  be inspected only in the patient’s presence, 
Eckerhart v. Hensley, supra, 475 F. Supp. at 924 (A 197-8). 
Despite these changes, defendants’ visitation and telephone 
policies still required court-ordered relief.

In addition to the court-ordered relief, plaintiffs’ lawsuit also 
prom pted defendants to remedy various challenged practices at 
the hospital. The catalytic effect of a lawsuit is an appropriate 
basis for awarding fees pursuant to  the Fees Act. The Congres­
sional Committee Reports on the Fees Act cite with approval 
several cases in which the catalytic effect of the lawsuit was held

20 Although the attorneys’ fee award here applied only to the inade­
quate treatment claim which comprised Count I of plaintiffs’ original 
complaint, it should be noted that the issues raised in Count II and III 
of that complaint were also resolved in plaintiffs’ favor. See, supra, pp 
1-2 .



— 22 —

to constitute a sufficient basis for awarding attorneys’ fees, S. 
Rep. No. 94-1011, 94th Cong., 2d Sess. 5 (1976); H .R . Rep. No. 
94-1558, 94th Cong., 2d Sess. 7 (1976). One o f those cases, 
Parham v. Southwestern Bell, 433 F.2d 421 (8th Cir. 1978), was 
a Title VII suit in which the plaintiffs were seeking attorneys’ 
fees. The Eighth Circuit held that although the requested in­
junction had not been issued, attorneys’ fees should be awarded 
because plaintiffs’ “ lawsuit acted as a catalyst which prom pted 
the appellee to  take [remedial] action . . . seeking compliance 
with the requirements of Title V II,”  id. at 429-30. Furthermore, 
as this Court has noted in several recent cases, the legislative 
history o f the Fees Act indicates that a person may be a 
“  ‘prevailing party ’ without having obtained a favorable ‘final 
judgment following a full trial on the m erits,’ ” Hanrahan v. 
Hampton, 446 U.S. 754, 756-7 (1980). (quoting H .R . Rep. No. 
94-1558, 94th Cong., 2d Sess. 7 (1976)); Maher v. Gagne, 448 
U.S. 122, 129 (1980). “ Thus, for example, ‘parties may be con­
sidered to have prevailed when they vindicate rights through a 
consent judgm ent or w ithout formally obtaining relief,’ ”  
Hanrahan v. Hampton, supra, 446 U.S. at 757 (quoting S. Rep. 
No. 94-1011, 94th Cong., 2d Sess. 5 (1976)).

As demonstrated above, the present litigation similarly 
caused defendants to  remedy inadequate treatm ent conditions 
in several key areas.21 The chronological history o f this litigation 
plainly reveals the catalytic effect o f the suit, but there is also 
direct evidence from  defendants’ own witness as to the causal 
relationship between the lawsuit and their remedial actions. See, 
supra at 20.

21 Because evidence of any “ catalytic effect” is often in the control 
of defendants, some courts review the “chronological course of events” 
in the law suit to discern such effect, Nadeau v. Helgemoe, 581 
F.2d 275, 281 (1st Cir. 1978). See also, Ross v. Horn, 598 F.2d 1312, 
1322 (3rd Cir. 1979), cert, denied, 448 U.S. 906 (1980).



—  23 —

W hen the court-ordered relief won by plaintiffs is combined 
with the remedial actions caused by their suit, the conclusion is 
inescapable — plaintiffs prevailed on practically every claim ad­
vanced. That conclusion is graphically dem onstrated by the 
chart set forth  below which compares the inadequate treatm ent 
allegations made in the 1977 amended complaint with the relief 
obtained through court order or remedial action. Since the 
plaintiffs here prevailed on virtually every material claim, the 
proportionality issue — with its assumption that at least to some 
extent plaintiff did not prevail — is not presented by the facts in 
this case.

The extensive success obtained by plaintiffs goes far to ex­
plain defendants’ course o f action with respect to the district 
court fees decision. While plaintiffs undeniably had the burden 
o f proving their entitlement to fees and the scope o f the award, 
defendants did not meet their responsibility to object with 
specificity to the compensable hours claimed by plaintiffs.22 
Defendants had ample opportunity through discovery and the 
hearing to  produce evidence, if any, on the appropriateness of 
their proposed proportionality theory. M onths after plaintiffs 
had requested attorneys’ fees, the court in June, 1980, granted 
defendants’ m otion to  reopen discovery on the fees issue. 
However, between July and the hearing in m id-October, defen­
dants did not pursue a single discovery device to develop 
evidence challenging or rebutting plaintiffs’ request for fees. 
Similarly, at the hearing, defendants offered no evidence to 
demonstrate to the district court those claims, if any, on which 
plaintiffs did not prevail. Instead they chose to rely simply on 
counsel’s argument for an autom atic, mathematical reduction

22 Defendants did argue for an across-the-board reduction in fees 
based on a mathematical formula. In their memo in opposition to a 
fee award they suggested that “ the hours claimed by the plaintiffs . . . 
should be reduced by seventy percent, to reflect, in some degree, the
extent to which they prevailed.” (Memo. opp. fees at 31.)



—  24 —

based on claims not resulting in court-ordered relief. Not sur­
prisingly then, the district court concluded, on the basis o f its 
own experience with the interrelated issues in the suit, that 
plaintiffs had not requested attorneys’ fees for any time 
unreasonably spent on clearly meritless or wholly unrelated 
claims.



Com parison of Relief Sought with Relief Obtained

Claims
[as alleged in plain­

tiffs’ complaint, 
8 /3 /77  (A71-80)]

Constitutional
Violation 

# * *

Court-ordered relief

Remedial action 
undertaken by 
defendants

No relief

I. Physical Environ­
ment 26)

1) Climate control
2) Inadequate privacy- 
bathroom s and 
lavatories
3) Inadequate sleeping 
facilities
4) Inadequate fur­
nishings and space for 
individual belongings

£  ̂ *

Extensive renovation 
plan was ordered to ad­
dress all o f the above 
physical inadequacies



Claims Constitutional
Violation 

* * * '

Court-ordered relief

Remedial action 
undertaken by 
defendants

No relief

II. Staffing (1 17) M aterial increases in 
staff explicitly in 
response to the lawsuit

III. Individual tre a t­
ment plans (118)

1) Operating Regula­
tion #149 which required 
the use o f plans, and

A. Initial prep­
aration

A. Impermissable 
delay in initial 
plans

2) Increased personnel 
and staff to  implement 
plans

* * *
A three-part 

specific time-table 
was ordered with the 
designation of a 
Building M onitor to 
insure compliance



Claims Constitutional
Violation

ft * ft

Court-ordered relief

Remedial action 
undertaken by 
defendants

No relief

B. Adequate 
review of pa t­
ients’ progress

B. Failure to make 
periodic reviews of 
the plans 

* £ *
Plans were to be 

reviewed formally 
every 90 days and 
Building M onitor 
designated to insure 
compliance

IV. Least Restrictive 
Environment 

(1 19, 24-25)

Long delay between 
determination that 
patient was ready to 
transfer and actual 
transfer held to be in­
consistent wth due pro­
cess



Claims Constitutional Remedial action No relief
Violation undertaken by

* * * defendants
Court-ordered relief

IV. Least Restrictive * * *
Environment Minimum timetable
(1 19, 24-25) established for transfer 

for patients;
Included within the 
relief ordered on the 
least restrictive environ­
ment issue, specific pro­
vision was made for the 
identification and 
transfer of mentally 
retarded patients23

23 Regarding the special education issue, the court did not address that issue specifically, and so relief was neither 
denied nor obtained.



Claims Constitutional
Violation

* * *
Court-ordered relief

Remedial action 
undertaken by 
defendants

No relief

V. Visitation, mail and 
telephone

A. Visitation (f  27) A. Held to be overly 
restrictive 

* * *
Policy ordered to 

be modified, and 
part o f the 
physical renovations 
included con­
struction o f new 
visiting room

B, Mail and tele- B. Telephone policy Mail policy restrictions
phone (1 28) overly restrictive 

* * *
Policy ordered to 

be liberalized

liberalized during course 
o f lawsuit



Claims Constitutional
Violation

* * *

C ourt-ordered relief

Remedial action 
undertaken by 
defendants

No relief

VI. Seclusion and 
Restraints 
A. Seclusion 

(1 21-23)
1) Seclusion for medical 
purposes: defendants’ 
practices, as contrasted 
with their policy, were 
violative o f plaintiffs’ 
rights

* *
Specific guidelines and 

procedures were ordered 
to insure that defen­
dants’ practices com­
plied with established 
policies

* * *



Claims Constitutional
Violation

* * *

Court-ordered relief

Remedial action 
undertaken by 
defendants

No relief

2) Seclusion for 
disciplinary purposes: 
held to  require minimal 
due process procedures 
which were found to be 
non-existent 

* * *

B. Medication 
(1 2 0 )

Minimum due process 
procedures were ordered 
to be implemented

B. Both as to insuf­
ficient staff to 
administer and 
over medication 
claim



—  32 —

II. The District Court Exercised Its Discretion In Consonance 
With The Standard Prescribed By Congress In The Fees Act 
When It Based Its Fee Award On The Ultimate Results Achieved 
In The Case As A Whole And Rejected The Mechanical, 
Mathematical Approach Urged By The Defendants.

A. The Fees Act authorizes attorneys’ fees to prevailing par­
ties for all time reasonably expended on a matter and rejects a 
proportional fee analysis.

The Fees Act is a broad Congressional charter authorizing 
courts to award the prevailing civil rights litigant “ a reasonable 
attorney’s fee as part o f the costs.”  Accompanying that statute 
is a legislative history in which Congress was able to provide the 
courts with more detailed and thorough guidance on the scope 
o f the fee-shifting remedy. The legislative history of the Fees 
Act is rem arkably rich and includes both a Senate Report, S. 
Rep. No. 94-1011, 94th Cong., 2d Sess. 1 (1976) and a House 
Report, H .R . Rep. No. 94-1558, 94th Cong., 2d Sess. 1 (1976). 
Both reports have been authoritatively cited by this Court. See 
Maher v. Gagne, 448 U.S. 122 (1980); Hanrahan v. Hampton, 
446 U.S. 754 (1980); Hutto v. Finney, 437 U.S. 678 (1978).

In the legislative history of the Fees Act, Congress explicitly 
stated the appropriate standard for com putation o f a reasonable 
attorney’s fee: “ [i]n computing the fee, counsel for prevailing 
parties should be paid, as is traditional with attorneys compen­
sated by a fee-paying client, ‘/ o r  all time reasonably expended 
on a matter, ’ ”  S. Rep. No. 94-1011, 94th Cong., 2d Sess. 6 
(1976) (quoting Davis v. County o f Los Angeles, 8 E .P .D . 
^9444 (C.D. Cal. 1974)) (emphasis added). Congress further in­
dicated that the standard had been correctly applied in Davis v. 
County o f  Los Angeles, supra, 8 E .P .D . f9044 and Stanford 
Daily v. Zurcher, 64 F.R .D . 680 (N.D. Cal. 1974).

Those cases establish that proper application o f the “ all time 
reasonably expended” standard does not permit proportioning



—  33 —

the fee award to only winning claims. In Davis, the plaintiffs 
had prevailed in a Title VII class action suit against the Los 
Angeles County fire departm ent and thereafter moved for an 
award o f attorneys’ fees under 42 U.S.C. §2000e-5(f)- After 
considering defendants’ proportionality argument, the court 
concluded that it was “ not legally relevant that plaintiffs’ 
counsel expended a certain limited am ount of time pursuing cer­
tain issues o f fact and law that ultimately did not become 
litigated issues . . .  or upon which plaintiffs ultimately did not 
prevail,”  8 E .P .D . at 5049. Rather, the court looked to the “ ex­
cellent results”  achieved for plaintiffs and their represented 
class, id. The final judgment entered on the merits had provided 
that until the percentage of blacks and Mexican-Americans in 
the fire departm ent workforce equalled that in the population 
o f Los Angeles County, forty per cent o f all new firemen hired 
by the county had to be black and Mexican-American, id. at 
5048. On the basis o f the significant results obtained for their 
clients, the court held that plaintiffs’ counsel were entitled to a 
statutory fee award “ for all time reasonably expended in pursuit 
o f the ultimate result achieved,”  id. at 5049. To the Davis court, 
“ reasonably expended tim e”  could include certain limited 
hours spent on unsuccessful issues o f law and fact.

The Stanford Daily attorneys’ fees decision explicitly approved 
by Congress also rejected a proportionality theory, Stanford 
Daily v. Zurcher, supra, 64 F.R .D . at 684. After the plaintiffs in 
Stanford had obtained a declaratory judgm ent, they unsuc­
cessfully sought injunctive relief against further unwarranted 
searches of individuals not suspected o f any crime. When they 
later moved for attorneys’ fees, the court refused to deduct 
from  the fee com putation hours expended on the unsuccessful 
m otion. Instead, it adopted the position that while fees would 
be denied for “ clearly meritless claim s,”  they should be granted 
“ for legal work reasonably calculated to advance . . . [the] 
clients’ interest,”  id. The Stanford court concluded that, 
although the plaintiffs did not secure the full injunctive relief re­



—  34 —

quested, they did obtain “ a significant concession from  defen­
dants as a result of their m otion”  and “ [i]n the process . . . 
substantially advanced their clients’ interest,”  id. Thus, the 
standard applied in Stanford Daily to determine a fee award 
would allow compensation for hours spent on issues which did 
not result in court-ordered relief but did nevertheless contribute 
to the client’s success.

The endorsement o f Davis and Stanford Daily in the 
legislative history o f the Fees Act establishes that Congress an­
ticipated and rejected the proportionality theory advocated by 
defendants. Defendants seek to  obfuscate that clear expression 
o f Congressional intent by suggesting that the Davis and Stan­
ford Daily cases are cited in the legislative history to support the 
proposition that a plaintiff need not recover damages in order to 
prevail for attorneys’ fees purposes, (Brief for Petitioners at 
46.) Similarly, one amicus curiae has argued that the Davis 
court was saying that a party could be considered prevailing 
even though limited time had been spent on issues not resulting 
in relief, (Brief for Amicus Curiae, Equal Employment A d­
visory Council at 11-12 n. 9.) Both characterizations are patently 
incorrect.

In the legislative history of the Fees Act, the Davis and Stan­
ford  Daily cases are cited with approval in the section dealing 
with the amount of the fee award, not in the earlier section con­
cerning eligibility for fees as a prevailing party, S. Rep. No. 
94-1011, 94th Cong., 2d Sess. 6-7 (1976). The Davis opinion 
also clearly separated the threshold question o f prevailing party 
status from  questions regarding the am ount o f the fee award. 
After finding that plaintiffs were the prevailing party, the Davis 
court addressed and rejected two arguments seeking to reduce 
the am ount of the fee — the public interest discount and the 
proportionality theory, Davis v. County o f  Los Angeles, supra, 
8 E .P .D . at 5048-9. W ith regard to  the Stanford Daily decision, 
Congress in the legislative history cited the exact page on which



—  35 —

the Stanford Daily court had considered other decisions using 
the proportionality theory and explicitly refused to adopt their 
approach, S. Rep. No. 94-1011, 94th Cong., 2d Sess. 6 (1976) 
(citing Stanford Daily v. Zurcher, supra, 64 F.R .D . at 684). 
Furtherm ore, since the prevailing party or fee eligibility issue 
had been answered in an earlier opinion, Stanford Daily v. Zur­
cher, 366 F. Supp. 18, 20-21 (N.D. Cal. 1973), a ff’d 550 F. 2d 
464 (9th Cir. 1977), the Stanford Daily decision cited in the 
legislative history did not even address that issue.

Congress in the Fees Act plainly did not intend that a fee 
award would be reduced by the time spent on every claim which 
did not result in relief. Instead, Congress singled out Davis and 
Stanford Daily as correct applications of the reasonable a t­
torneys’ fee standard and thus endorsed their fee computation 
analysis. That fee com putation analysis involved two primary 
steps. First, the court determined who was the prevailing party 
eligible for a reasonable attorney’s fee. Second, the court looked 
at the case as a whole to determine what time was reasonably ex­
pended on the m atter. Legal services for a prevailing party were 
reasonably expended unless: (a) they were spent pursuing claims 
“ in bad faith”  which could entitle an opposing party to fees, S. 
Rep. No. 94-1011, 94th Cong., 2d Sess. 5 (1976); (b) they were 
spent on “ clearly meritless claims,”  Stanford Daily v. Zurcher, 
supra, 64 F .R .D . at 684; or (c) they were spent on claims so 
wholly unrelated, causes o f action so clearly separable, or issues 
so distinguishable and discrete that, looking at the case as a 
whole, the time involved in preparing, proving, or litigating 
them  had in no way contributed to the “ ultimate result achiev­
ed ,”  Davis v. County o f Los Angeles, supra, 8 E .P .D . at 5049; 
Stanford Daily v. Zurcher, supra, 64 F.R .D . at 684.24

24 That method of analyzing reasonably expended time recognizes 
that, between clearly meritless claims and relief-obtaining claims, a 
prevailing party would also properly receive fees for time spent pursu­
ing other related claims which did not provide the precise basis for 
relief but nevertheless contributed to the overall accomplishments of 
the suit.



—  36 —

The fee analysis made by the district court in the present case 
was fully consistent with the standard and guidelines prescribed 
by Congress in §1988 and its legislative history. The court first 
determined that plaintiffs were the prevailing party. In fact, the 
court found that the relief obtained by plaintiffs at trial was suf­
ficient in itself to make them  prevailing parties and to obviate 
the necessity o f examining any issues resolved prior to  trial. 
Since there were no special circumstances rendering a fee award 
unjust, the plaintiffs were entitled to a reasonable attorneys’ 
fee.

W ith the threshold question o f prevailing party status 
answered, the court then proceeded to consider the am ount o f a 
reasonable fee. The defendants had argued that the am ount of 
the fee should be reduced by an autom atic percentage reflecting 
the claims on which plaintiffs failed to obtain court-ordered 
relief. Despite the contrary characterization o f their position of­
fered to  this Court, (Brief for Petitioners at 47-48), defendants 
contended before the district court for precisely such a 
mathematical rule. In their m em orandum  submitted to the 
district court on the fees issue, defendants urged that “ [wjhat is 
relevant is what the plaintiffs actually accomplished in this 
litigation. That accomplishment can only be measured by 
reference to the opinion and judgment of this Court, taken in 
context with the length and duration o f this lawsuit and the fac­
tual allegations which the lawsuit has represented,”  (Memo, 
opp. fees at 11-12) (emphasis added). Defendants then argued 
“ that the total failure o f the plaintiffs to  secure any relief w hat­
soever in the area o f staff fully justifies at least a sixty percent 
reduction in the hours claimed by plaintiffs for attorneys’ fees 
purposes,”  id. at 30, (emphasis added). Later, in that same 
m em orandum , defendants again contended that “ [tjaking into 
account the limited success o f the plaintiffs in this litigation, . . . 
the hours claimed by the plaintiffs . . . should be reduced by 
seventy percent, to  reflect, in some degree, the extent to  which 
they prevailed,”  id. at 31, (emphasis added).



—  37 —

The district court considered defendants’ mathematical ap­
proach comparing total issues with issues actually prevailed on 
at trial and found that such an approach ignored the inter­
related nature o f issues and the extent to which a party could 
prevail on various issues, (Pet. App. B at A  7-8). instead, the 
court used the Johnson v. Georgia Highway Express, Inc., 488 
F. 2d 714 (5th Cir. 1974) factor of “ results obtained”  to analyze 
the ultimate accomplishments made in the case as a whole, (Pet. 
App. B at A 16). In the seamless fabric of those ac­
complishments — the vindication of plaintiffs’ constitutional 
rights and the accompanying changes in their treatm ent environ­
ment — there was no time unreasonably spent on clearly 
meritless or wholly unrelated claims. By looking at the case as a 
whole and evaluating claims within the context o f the ultimate 
results achieved, the district court exercised its discretion in the 
m anner intended by Congress in the Fees Act.

B. The Circuit Courts giving due consideration to the express 
instructions of Congress in the Fees Act have awarded at­
torneys’ fees for ail time reasonably expended on a matter and 
rejected a proportional fee analysis.

Because o f Congress’ exclusive authority to allow attorneys’ 
fees, the expressions of legislative intent and purpose recorded 
in the statutory history o f the Fees Act deserve particular weight 
and attention. The Committee Reports on the statute show that 
its enactment was a direct response to the Supreme Court deci­
sion in Alyeska Pipeline Service Co. v. Wilderness Society, 421 
U.S. 240 (1975). See S. Rep. No. 94-1011, 94th Cong., 2d Sess.
1 (1976); H .R . Rep. No. 94-1558, 94th Cong., 2d Sess. 2 (1976). 
In Alyeska, the Court had reaffirmed the “ American Rule” 
that each litigant m ust pay his own attorney’s fees in the absence 
o f specific Congressional authorization shifting those fees to the 
unsuccessful party. Congress had reserved for itself the power 
“ to carve out specific exceptions to the general rule that federal 
courts cannot award attorneys’ fees beyond the limits o f 28 
U .S .C . §1923,”  id. at 269. Finding that the rejection of a



—  38 —

“ private attorney general”  rule in Alyeska had limited the 
capacity of ordinary citizens to  protect their civil rights, Con­
gress carved out just such a special exception in the Fees Act and 
authorized fee-shifting in §1983 actions and other civil rights 
litigation, H .R . Rep. No. 94-1558, 94th Cong., 2d Sess. 2 
(1976).

The Alyeska decision recognized the unique authority of 
Congress not only to  provide for awards o f attorneys’ fees but 
also to determine the scope and standards for those awards. 
“ [I]t is apparent that the circumstances under which attorneys’ 
fees are to be awarded and the range of discretion o f the courts 
in making those awards are m atters for Congress to  determ ine,” 
id. at 262. In the legislative history of the Fees Act, Congress 
went to  great lengths to define the standard for determining the 
am ount o f a reasonable attorneys’ fee and to  illustrate its proper 
application. Since the power to  allow fee awards and determine 
their scope lies within the special province o f the legislative 
branch, the guidance provided by Congress in the statutory 
history o f its attorneys’ fees acts should receive extensive con­
sideration from  the courts.

Every circuit court giving due weight to the expressions of 
Congressional intent in the legislative history of the Fees Act has 
rejected a proportionality formula. To the Sixth Circuit in North- 
cross v. Board o f  Education o f  Memphis City Schools, 611 F. 
2d 624, 636 (6th Cir. 1979), cert, denied, 447 U.S. 911 (1980), 
Congress had m andated in the statutory history o f the Fees Act 
that a prevailing party should receive attorneys’ fees “ for all 
time reasonably expended on a m atter.”  That m andate was 
especially compelling because “ the courts are obligated to  apply 
the standards and guidelines provided by the legislature in m ak­
ing an award o f fees,”  id. at 632. On the basis o f that Congres­
sional command, the Sixth Circuit in Northcross reversed a 
district court applying the same autom atic percentage reduction 
as advocated by defendants here. This Court then denied a peti­
tion for certiorari on that issue, 447 U.S. at 911.



—  39 —

The standard prescribed by Congress for making awards 
under the Fees Act also provided the basis for the Eighth Cir­
cuit’s decision in Brown v. Bathke, 588 F. 2d 634 (8th Cir. 
1978). To the Brown court, when the Senate Committee cited 
the correct application of that standard in Davis v. County o f  
Los Angeles, supra, 8 E .P .D . at 5049, Congress had effectively 
addressed and resolved the question o f what time should be con­
sidered reasonably expended, Brown v. Bathke, supra, 588 F. 
2d at 637. Reversing the district court’s decision which limited 
the fee award to only that time spent on the claim garnering 
court-ordered relief, the Eighth Circuit held that, so long as the 
time was not spent on clearly frivolous or m anufactured issues, 
compensation for time spent on “ a claim which is reasonably 
calculated to advance a client’s interest should n o t . . .  be denied 
solely because that claim did not provide the precise basis for 
the relief granted,”  id. The Brown decision is still cited with ap­
proval by the Eighth Circuit, Planned Parenthood Assoc, v. 
Ashcroft, 655 F. 2d 848 (8th Cir. 1981); Reproductive Health 
Services v. Freeman, 614 F. 2d 585 (8th Cir. 1980); Crain v. City 
o f Mountain Park, 611 F. 2d 726 (8th Cir. 1979).

The m ost dram atic response to the Congressional m andate on 
the Fees Act came from  the Tenth Circuit. After the Act was 
passed and the statutory history considered, the Tenth Circuit 
reversed its position on the proportionality theory, holding that 
‘‘[a] technical dissection o f the course o f litigation and a 
mechanical proportionate reduction o f the total fee is not in 
keeping with either the express intent o f Congress or the broad 
remedial purposes o f the Civil Rights A cts,”  Gurule v. Wilson, 
635 F. 2d 782, 793-4 (10th Cir. 1980).25 The Tenth Circuit

25 Although the Gurule court suggested on rehearing that a fee 
award might be proportioned where the plaintiff had failed to prevail 
on a substantial separate issue, the Tenth Circuit did not find such a 
situation in L ittle f ie ld s . D eland, 641 F. 2d 729 (10th Cir. 1981) where 
it found that detention in a ‘‘strip cell” without notice or hearing 
violated procedural due process requirements, but rejected the claim 
that a “strip cell” was p e r  se  unconstitutional.



—  40 —

recently affirmed its rejection o f a proportionality form ula in 
Littlefield v. Deland, 641 F. 2d 729 (10th Cir. 1981), concluding 
that attorneys’ fees under §1988 may be awarded for work on 
“ issues o f fact or law upon which plaintiff ultimately did not 
prevail so long as they were reasonably calculated to prom ote 
the client’s interest,”  id. at 733.26

The express Congressional command to  award fees under 
§1988 for all time reasonably expended and to  reject the propor­
tionality theory has proved unm istakably clear to those courts 
giving due attention to the legislative history o f the Fees Act. In­

26 The Congressional guidelines provided in the Fees Act and its 
legislative history also led the Fifth Circuit to reject a proportionality 
theory and award fees for all time reasonably expended, Jones v. Dia­
mond, 636 F. 2d 1364 (5th Cir. 1981). Noting the overlapping and in­
tertwined nature of issues in an institutional conditions suit, the court 
refused to proportion the fee award to only those claims resulting in a 
judgment. In addition to the Sixth, Eighth, Tenth, and Fifth Circuits, 
panels in three other circuits have also declined to limit fee awards to 
claims resulting in relief. In the Seventh Circuit, see Sherkow v. State 
of Wisconsin, 630 F. 2d 498 (7th Cir. 1980). Contra, Muscare v. 
Quinn, 614 F. 2d 577 (7th Cir. 1980). For the Ninth Circuit, see 
Manhart v. City o f Los Angeles, Department o f Water, Inc., 652 F. 
2d 904 (9th Cir. 1981); Seattle School District No. 1 v. State of 
Washington, 633 F. 2d 1338 (9th Cir. 1980). Contra, Sethy v. 
Alameda County Water District, 602 F.2d 894 (9th Cir. 1979) cert, 
denied, 444 U.S. 1046 (1980). In the First Circuit, see Lamphere v. 
Brown University, 610 F. 2d 46 (1st Cir. 1979). Contra, Nadeau v. 
Helgemoe, 581 F. 2d 275 (1st Cir. 1978). Although the court in Lam­
phere noted that time spent on a truly fractionable claim was not com­
pensable, it held that the fee award properly compensated time spent 
on an issue not resulting in relief when that issue was “ all part and 
parcel of one matter,” Lamphere v. Brown University, supra, 610 F. 
2d at 47. In dicta, the District of Columbia Circuit in Copeland v. 
Marshall, 641 F. 2d 880, 892 n. 18 (D.C. Cir. 1980), quoted with ap­
proval the holding in Lamphere. Neither the Fourth, the Second, nor 
the newly created Eleventh Circuit has apparently considered the ques­
tion of whether the Fees Act permits a proportionality formula, but 
the Second Circuit has declined to apply such a formula in other com­
plex federal litigation, Seigal v. Merrick, 619 F. 2d 160 (2nd Cir. 
1980).



—  41

deed, that Congressional command is so clear that only one cir­
cuit has consistently applied a proportionality analysis to fee 
awards under §1988, and even that circuit in Hughes v. Repko, 
578 F. 2d 483, 486 (3rd Cir. 1978) reversed the lower court for 
imposing a mechanical, mathematical reduction such as defen­
dants advocated here. See e.g., Walker v. Robbins Hose Co. 
No. 1, Inc., 622 F. 2d 692 (3rd Cir. 1980). As the Sixth Circuit 
noted, the Fees Act is a “ rare statute with sufficient legislative 
history to  provide ‘[a] clear-cut indication that Congress con­
sidered [many of] the exact problem[s] with which we are now 
confronted and provided an express indication as to how the 
general language o f the 1976 Statute was intended to be 
applied,’ ”  Northcross v. Board o f Education o f Memphis City 
Schools, supra, 611 F. 2d at 633 (quoting Seals v. Quarterly 
County Court, 562 F. 2d 390, 394 (6th Cir. 1977)). In light of 
Congress’ exclusive authority to allow attorneys’ fees, the North- 
cross court and others have felt obligated to apply the standards 
and guidelines prescribed in the legislative history of the Fees 
Act. The fee award made by the district court in the present case 
was fully consistent with those same legislative standards and 
guidelines.

III. Congress Found That Strong Public Policy Considera­
tions Required A Standard Which Awards Attorneys’ Fees For 
All Time Reasonably Expended On A Matter.

Reflected in the legislative history o f the Fees Act are matters 
o f public policy which Congress considered in determining the 
standard to be used in awarding reasonable attorneys’ fees 
under the Civil Rights A ttorneys’ Fees Awards Act. Congress 
concluded that those policy considerations necessitated an at­
torneys’ fees standard which will prom ote vigorous private en­
forcement o f civil rights laws, encourage compliance with both 
the letter and the spirit of professional ethical obligations, and 
facilitate judicial economy and efficiency. The standard of



—  42

awarding attorneys’ fees for all time reasonably expended, as set 
forth  by Congress in the legislative history of the Fees Act, 
would foster each o f these policy considerations. The p ropor­
tionality form ula advocated by defendants, on the other hand, 
would effectively undermine those same public goals.

Congress enacted the fee-shifting provisions of §1988 
specifically to insure compliance with and vigorous private en­
forcement o f civil rights laws, H .R . Rep. No. 94-1558, 94th 
Cong., 2d Sess. 9 (1976). A fter conducting hearings on fee 
awards, Congress found that such awards were “ an integral 
part o f the remedies necessary to obtain compliance”  with civil 
rights laws, S. Rep. No. 94-1011, 94th Cong., 2d Sess. 5 (1976). 
W ithout the prospect of securing attorneys’ fees from  an unsuc­
cessful party, private attorneys and the over-extended civil 
rights bar could not feasibly represent ordinary citizens o f o r­
dinary means in complex civil rights litigation, id. at 3. The rela­
tionship between civil rights enforcement and attorneys’ fees 
has depended not simply upon the availability o f fees but also 
upon the scope o f the fee award. Unless the standard for deter­
mining a reasonable fee award under §1988 is applied so as “ to 
attract competent counsel in cases involving civil and constitu­
tional rights,”  the private enforcement of those rights would be 
neither vigorous nor effective, H .R . Rep. No. 94-1558, 94th 
Cong., 2d Sess. 9 (1976). The standard o f awarding fees for all 
time reasonably expended would treat civil rights attorneys like 
attorneys with fee-paying clients and compensate them for those 
legal services reasonably calculated to advance their clients’ in­
terests. By contrast, the proportionality form ula would place so 
much of the litigation risk on attorneys that competent counsel 
would soon be driven out o f civil rights practice. The Congres­
sional purpose o f promoting competent and aggressive 
representation in civil rights litigation would thus be undercut 
by a theory of proportional fee com putation. “ If our civil rights 
laws are not to become mere hollow pronouncem ents which the 
average citizen cannot enforce, we must m aintain the trad i­



43

tionally effective remedy of fee shifting in these cases,”  S, Rep. 
No. 94-1011, 94th Cong., 2d Sess. 6 (1976).

Congress was also keenly aware that a proportionality for­
mula would discourage precisely the zealous representation 
which the Fees Act seeks and the Code o f Professional Respon­
sibility requires from attorneys. In Stanford Daily v. Zurcher, 
supra, 64 F .R .D . at 684, cited approvingly by Congress, the 
court recognized that civil rights attorneys are often “ working 
in new or changing areas of the law .”  When their legal work is 
reasonably calculated to advance their clients’ interests, their ef­
forts should not go uncompensated simply because they failed 
“ to divine the exact param eters of the courts’ willingness to 
grant relief,” id. Ethical considerations in the Code o f Profes­
sional Responsibility provide that “ [t]he duty o f a lawyer to his 
client and his duty to the legal system are the same: to represent 
his client zealously within the bounds o f the law ,”  EC 7-19. 
Especially in the area o f civil and constitutional rights where the 
bounds o f the law are often unclear and uncertain, the Code of 
Professional Responsibility maintains that “ a lawyer should 
resolve in favor o f his client”  any doubts as to the bounds o f the 
law, EC 7-3. A proportionality theory which compensates civil 
rights attorneys only for hours spent on winning issues would 
discourage aggressive advocacy exploring the cutting edge of the 
law. The Sixth Circuit explained why the proportionality for­
mula violates the spirit of the ethical code and the Fees Act:

[I]t would hardly further our m andate to use the ‘broadest 
and most flexible remedies available’ to us to enforce the 
civil rights laws if we were so directly to discourage in­
novative and vigorous lawyering in a changing area o f the 
law. That m andate is best served by encouraging attorneys 
to take the most advantageous positions on their clients’ 
behalf that is possible in good faith.

Northcross v. Board o f Education o f Memphis City Schools, 
supra, 611 F. 2d at 636.



—  44 —

Even outside the context of civil rights litigation, the Second 
Circuit in a stockholder’s derivative suit recognized that a p ro ­
portionality theory would deter vigorous, professional lawyer­
ing. “ Lawyers for plaintiffs and objectors in derivative or class 
actions, no less than other litigators, must evaluate, accept and 
prosecute suits on the basis of the entire spectrum of theories 
that show early promise of vindicating their clients’ rights,” 
Seigal v. Merrick, supra, 619 F. 2d at 164-5. Rewarding only the 
pursuit o f successful theories would “ invite overly conservative 
tactics and even prohibit some high-risk but deserving actions 
entirely,”  id. at 164. That assessment o f the impact of a propor­
tionality rule in corporate and securities cases is particularly in­
structive in light o f Congress’ directive that fee awards under 
§1988 should “ be governed by the same standards which prevail 
in other types of equally complex Federal litigation, such as an­
titrust cases,”  S. Rep. No. 94-1011, 94th Cong., 2d Sess. 6 
(1976). Obviously, if the proportionality form ula would 
discourage aggressive advocacy by attorneys with well-financed 
clients, it would virtually paralyze civil rights lawyers represen­
ting poor people. Certainly, Congress never intended the Fees 
Act to have a chilling effect on civil rights litigation.

In contrast to the dampening influence of a proportionality 
theory, the standard prescribed by Congress — awarding fees 
for all time reasonably expended on a m atter — would prom ote 
vigorous civil rights advocacy within the bounds of professional 
ethical obligations. By endorsing the application of that stan­
dard in Davis and Stanford Daily, Congress also built into the 
standard precautions against any windfall to civil rights a t­
torneys. Under that standard, time spent on clearly meritless or 
wholly unrelated claims is not reasonably expended and 
therefore not compensable. Civil rights attorneys seeking an 
award under the Fees Act would bear the risk o f pleading clearly 
meritless or wholly unrelated claims, but they would not be 
discouraged from pursuing meritorious, interrelated claims 
which simply might not result in court-ordered relief.



45 —

A proportionality theory finally would wreak havoc on the in­
terests of judicial economy and efficiency. In fact, adoption of 
the proportionality form ula would turn the attorneys’ fees hear­
ing into a massive inquiry likely to dwarf even the trial on the 
merits. The practical difficulties o f applying a proportionality 
form ula would be overwhelming, especially in a complex civil 
rights case composed o f interrelated and intertwined claims. 
Applying a proportionality form ula would require plaintiffs’ 
counsel and the district court to identify the time spent prepar­
ing and litigating each separate claim. A brief example from the 
present case illustrates the problems inherent in such a formula. 
A t the trial on the merits in this case, plaintiffs on May 9, 1979, 
cross-examined Dr. Ritterbusch, the Superintendent of Fulton 
State Hospital (A 4). As superintendent, his testimony touched 
on all m ajor issues in the case. The time records o f plaintiffs’ 
counsel, M r. Berkowitz, show that on May 8, 1979, he spent 5Vi 
hours on trial preparation and 7 hours in trial on May 9, 1979 
(A 218). How is that time to be allocated to each issue on which 
Dr. Ritterbusch testified? Is plaintiffs’ counsel to keep time 
records so detailed that they show 4Vz minutes spent preparing 
for cross-examination on the overmedication issue and 2714 
minutes on treatm ent plans? Obviously, a proportionality 
theory would either drown the parties and the trial court in an 
ocean o f records and testimony or force the court to grab the 
frayed lifeline of an autom atic, mechanical percentage reduc­
tion for each claim not resulting in court-ordered relief. Neither 
approach is within the scope of Congressional intent in the Fees 
Act.

The standard prescribed by Congress in the Fees Act and its 
legislative history is a far more sensitive and efficient method 
for determining a reasonable fee award. As the Fees Act itself 
requires, the Congressional standard relies on the discretion of 
the trial court familiar with the case as a whole. The trial court 
must use its discretion to determine prevailing party status, to 
consider any special circumstances mitigating against attorneys’



46

fees, and to identify any bad faith or dearly  meritless daim s. In 
addition, when a prevailing party has not obtained or prompted 
relief on a particular claim, the Congressional standard 
authorizes the trial court to use its discretion in evaluating the 
claim. Under that standard, the court is not locked into any 
rigid, autom atic fee reduction or bogged down in endless time 
analyses. Rather, the court must exercise its discretion within a 
framework assessing whether the time spent prosecuting that 
claim in any way contributed to  the ultimate results achieved. If 
it finds such a relationship, then the time is properly compen­
sable under the Fees Act.

Defendants, in the final portion of their brief, urge adoption 
of a standard principle to guide lower federal courts in 
fashioning fees awards under §1988. The appropriate standard 
and the m ethod for applying it have already been articulated by 
Congress in the Fees Act and its legislative history. In making its 
fee award in the present case, the district court exercised its 
discretion in consonance with the standard and m ethod of 
analysis intended by Congress.



47 —

CONCLUSION

The judgment o f the Court o f Appeals, affirming the decision 
o f the District Court assessing reasonable attorneys’ fees against 
defendants, should be affirm ed in all respects.

Respectfully submitted,

STANLEY J. EICHNER 
ANN B. LEVER 

Legal Services o f Eastern 
Missouri, Inc.

P .O . Box 4999A, Field Station 
625 North Euclid Avenue 

St. Louis, Missouri 63108 
(314) 454-6860 

Attorneys for Respondents

June, 1982