___________

No. 95-1496

___________

Association for Retarded *

Citizens of North Dakota; *

Lindley Black, by his father, *

Sidney Black; Bradley Cossett, *

by his mother, Denise Cossett; *

Richard Schneiderhan, by his *

mother, Elmira Schneiderhan; * 

Naomi Jordison, by her father, *

Timothy Jordison; Kelli *

Moriarty, by her mother, *

Jacquelyn Moriarty; Phillip *

Dechant, by his mother, Lois *

Dechant, on behalf of *

themselves and all others * Appeal from the United States

similarly situated, * District Court for the

* District of North Dakota.

Plaintiffs - Appellees, *

*

v. *

*

Edward T. Schafer, Governor of *

the State of North Dakota; *

Charles Mertens; Wanda *

Kratochvil; Dr. Jon Rice; *

Sam Ismir; Sandi Noble; Reuben *

Guenthner; Wayne Sanstead; *

Gary Gronberg; Henry Wessman; *

Gene Hysjulien; Yvonne Smith, *

*

Defendants - Appellants. *

___________

 Submitted: October 16, 1995

 Filed: May 15, 1996

___________

Before McMILLIAN, LOKEN, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________

LOKEN, Circuit Judge.

This is a class action challenging the State of North Dakota's

programs and facilities for the mentally retarded. The district
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court issued a broad permanent injunction in 1982, and we affirmed.

Association for Retarded Citizens v. Olson, 561 F. Supp. 473 (D.N.D. 1982),

aff'd, 713 F.2d 1384 (8th Cir. 1983). However, in 1991 we held that the

Eleventh Amendment as construed in Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89 (1984), precludes those portions of the injunction

that enforced state law, and we remanded for consideration of whether the

State now complies with federal law. Association for Retarded Citizens v.

Sinner, 942 F.2d 1235 (8th Cir. 1991). In remanding, we noted:

[T]he State argue[s] that Pennhurst requires this action be

terminated because the State is now in compliance with all

federal constitutional and statutory requirements. In support

of its position, the State has offered affidavit evidence . .

. that all systemic constitutional violations that may have

existed at the start of this litigation have been eliminated.

Although appellees have contested some of these assertions, our

review of the record suggests that the State has presented a

prima facie case of current compliance, particularly under the

changed legal environment of Youngberg [v. Romeo, 457 U.S. 307

(1982),] and Pennhurst. 

942 F.2d at 1240.

On remand, after broadly defining plaintiffs' rights under federal

law, the district court appointed a Panel of Special Masters "to receive

and evaluate such evidence as the parties present" and to file a report

with the court concerning the State's motion to terminate the injunction.

After nine months of hearings, the Panel recommended that the injunction

be terminated and the case dismissed. The district court adopted the

Panel's Report in its entirety and directed entry of judgment dissolving

all outstanding injunctive orders. However, the court also awarded

plaintiffs substantial costs, attorney's fees, and expert fees for their

work in opposing the State's motion to terminate the injunction. The State

appeals, contesting $202,335.15 of the amount awarded. Concluding that the

contested services were not
 The State also raises other issues: that § 1988(c) does not 1

authorize an expert fee award because plaintiffs did not assert or

prove claims under 42 U.S.C. § 1981 or § 1981a; that the expert fee

award is not authorized under other statutes invoked by plaintiffs,

20 U.S.C. § 1415(e)(4)B), the Americans with Disabilities Act, 42

U.S.C. §§ 12101 et seq., and 29 U.S.C. § 794; and that the district

court retroactively applied § 1988(c), violating Landgraf v. USI

Film Prods., 114 S. Ct. 1483 (1994). Given our view of the case,

we need not take up these important issues. 

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reasonably expended by the prevailing party, as required by Hensley v.

Eckerhart, 461 U.S. 424 (1983), we reverse.

I.

In federal civil rights litigation, "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(b). There can be

no doubt that plaintiffs initially prevailed in this lawsuit. See ARC v.

Olson, 713 F.2d at 1395-96, reducing the initial attorney's fee award. The

State paid substantial fee awards for the period 1980 through 1992. At

issue here are fee requests for 1993-1994, a period following the district

court's appointment of the Special Masters Panel. The State has paid

$113,835.65 of the amounts requested without objection. It appeals the

award of additional claims for $124,405 in attorney's fees and $77,931.15

in costs and expert fees. 

The district court granted these requests in full, concluding (i)

plaintiffs are still prevailing parties; (ii) the requested attorney's fees

are "the product of reasonable hours times a reasonable rate" and "there

is no need to adjust the fee"; and (iii) an award of expert fees is

expressly authorized by § 1988(c), first enacted in 1991. On appeal, the

State argues that plaintiffs are not "prevailing parties" for purposes of

this award, and also that the amount of fees awarded is unreasonable. We 1

review an award under fee-shifting statutes for "an abuse of discretion or

an
 The Supreme Court noted this principle in Pennsylvania v.

2

Delaware Valley Citizens' Council, 478 U.S. 546, 559 (1986). 

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error in implementing the governing legal standards." McDonald v.

Armontrout, 860 F.2d 1456, 1458 (8th Cir. 1988).

II.

Complex civil rights cases seldom end with the grant of a permanent

injunction. The injunction must be implemented, that process must be

monitored, and lingering or new disputes over interpretation of the decree

must often be presented to the court for resolution. These functions take

time and effort by the prevailing party's attorney. Therefore, it is

generally accepted that prevailing plaintiffs are entitled to post-judgment

fee awards for legal services necessary for reasonable monitoring of the

decree. See Stewart v. Gates, 987 F.2d 1450, 1452 (9th Cir. 1993); Garrity

v. Sununu, 752 F.2d 727, 738 (1st Cir. 1984). 

2

However, not all post-judgment efforts are compensable. First, when

"claims distinctly different from the underlying lawsuit" arise after

resolution of the main civil rights issues, plaintiffs must prevail on

these unrelated claims to be entitled to a fee award for the post-judgment

work. Willie M. v. Hunt, 732 F.2d 383, 386 (4th Cir. 1984). Second,

compensable post-judgment work must in any event be reasonable and

necessary, measured by the Hensley v. Eckerhart standard that requires

balancing the amount of effort against plaintiffs' overall success. Like

the Tenth Circuit, we reject the notion that fee awards "in a post-decree

monitoring setting . . . are immune from the possibility of reduction under

the principles of Hensley." Joseph A. v. New Mex. Dept. of Human Servs.,

28 F.3d 1056, 1060 (10th Cir. 1994).

The district court failed to conduct this analysis. True, the court

applied the familiar "lodestar" approach and found that the
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number of hours and the hourly rate submitted by plaintiffs' counsel were

reasonable. But the court awarded the full amount requested without

analyzing whether plaintiffs' efforts in 1993 and 1994 were reasonable in

light of their level of success. See Hensley, 461 U.S. at 438-40. Partial

success may justify only a partial fee award. See Farrar v. Hobby, 113 S.

Ct. 566, 574-75 (1992); Craik v. Minnesota State Univ. Bd., 738 F.2d 348,

349-50 (8th Cir. 1984). 

III.

We remanded this case in 1991 because some of the relief initially

afforded plaintiffs violated the Eleventh Amendment, and because the State

had made a prima facie showing that the permanent injunction should now be

terminated. On remand, the district court appointed a Panel of Special

Masters to consider the State's motion to terminate. This procedure

certainly called for reasonable post-judgment monitoring. Plaintiffs could

not simply walk away from the Panel's inquiry; the district court expected

them to participate. Thus, as in Plyler v. Evatt, 902 F.2d 273, 281 (4th

Cir. 1990), "plaintiffs' counsel were under clear obligation to make the

defensive effort," and in such situations, even largely unsuccessful

defensive efforts may be compensable. See also Hatfield v. Hayes, 877 F.2d

717, 720 (8th Cir. 1989). 

However, it was up to plaintiffs to define the extent of their

participation. Plaintiffs had every reason to know, before the Panel

hearings began, the nature of the State's compliance efforts. Plaintiffs

could have acknowledged that those efforts appeared to provide full relief

and engaged in relatively passive monitoring of the State's compliance

evidence to the Panel. Instead, plaintiffs fought the State at every turn,

presenting their own slate of opposing experts and examples of alleged

class member deprivations. Given the parameters established by our remand

order, this was, in
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substance, the assertion of new claims for relief. Those new claims were

unsuccessful.

The Panel received evidence from November 1992 to August 1993.

Forty-four witnesses testified, including eleven outside experts. The

Panel issued its Report on November 14, 1994. In recommending that the

permanent injunction be terminated and the case dismissed, the Panel

concluded:

In the space of twelve hard years, North Dakota has moved

from an embarrassing lack of appropriate attention to its

responsibilities to become a forward-looking provider of the

most promising methods and mechanisms to benefit those whom it

once ignored. To deny that recognition is to ignore volumes of

fact and countless days, months, and years of work, not to

mention expense. 

* * * * *

The panel has, in its review of the record, studied plaintiffs'

assertions of federal rights violations. The panel has found

that the examples presented appear to be relatively isolated,

unconnected incidents involving oversight, common errors in

judgment, and service inconsistencies between regions. No

willful or knowing acts of abuse, neglect, or deprivation of

rights of class members have been left unaddressed. The State

has demonstrated that its system for delivering services to

persons with developmental disability no longer has inherent

within it violations of the federal constitutional and legal

rights of those so disabled. 

This was a complete rejection of plaintiffs' position. Plaintiffs had

asserted that the State was not in compliance with federal law. The Panel

disagreed, in essence concluding that plaintiffs had received all the

relief to which they were entitled in the lawsuit by the time of our 1991

remand. Thus, the relative success factor in the Hensley equation suggests

that plaintiffs' fee award must be reduced to an amount that would

compensate for the limited effort required to engage in relatively passive

monitoring of the Panel proceedings. A prevailing party who aggressively

seeks a greater victory and fails is entitled to a proportionally lesser

fee award
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than a prevailing party who merely defends its victory, even if the defense

is less than completely successful. See Ustrak v. Fairman, 851 F.2d 983,

990 (7th Cir. 1988). 

We must also consider the other key component of the Hensley equation

-- exclusion of "hours that are excessive, redundant, or otherwise

unnecessary," 461 U.S. at 434. The State on appeal has identified numerous

examples of seemingly excessive and unnecessary work, such as the time

spent by attorneys with billing rates in excess of $100 per hour

accompanying experts on facility tours for days on end. Cf. Halderman v.

Pennhurst State Sch. & Hosp., 49 F.3d 939, 942 (3d Cir. 1995). The nature

of the Panel proceedings was described in a section of the Panel's fiftyfive page final Report entitled "The trouble with experts":

Each side's counsel [supported] the proposition that its expert

was the correct assessor for various reasons: the other's

notes were incomplete, visit too brief, methodology flawed,

experience less, education less prestigious, or preparation for

the site visit insufficiently detailed or insufficient in

scope. Endless reasons were offered for discrediting the

observations of an expert witness from a site visit: reviewing

the Individualized Education Plans of all students in the unit

first, as opposed to afterward or not at all; or talking, or

not talking, to direct care staff; talking, or not talking, to

classroom teachers, or special education directors, or parents,

or team members, or assessors, or evaluators, or case managers,

or the Qualified Mental Retardation Professional; or not

looking at the actual habilitation plans of everyone at the

site visited, or at the particular plan of a client interviewed

there; or not interviewing any client there; or not reviewing

all, or specific, work plans or training programs for clients

at a day work activity; or not comparing a client's plans

through time to note progress or lack thereof and whether the

plan adjusts according to the circumstances; or not tracking

quarterly utilization reviews of service plans. 

Perhaps all this effort would have been compensable had plaintiffs

persuaded the Panel or the district court that the State continues
 The district court did not discuss and plaintiffs have made 3

no attempt to explain why their experts were necessary for

reasonable post-judgment monitoring.

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to violate federal law. But it was overkill in light of the State's

persuasive evidence that the time had come to end the litigation. This

necessitates a reduced fee award, because in compensating post-judgment

monitoring, we must avoid creating a framework in which "the decree

institutionalizes the attorney, as well as the system." Brewster v.

Dukakis, 786 F.2d 16, 18 (1st Cir. 1986). 

We therefore conclude that the district court's fee award cannot

stand. Normally, when a fee award must be reduced, we remand for

calculation of an appropriate fee, as the Supreme Court did in Hensley.

But there is no need for that in this case. Plaintiffs have been paid for

all their post-judgment monitoring in 1992, when the Panel was appointed

and began its hearings, plus an additional $113,000 for services in 1993

and 1994. Even if plaintiffs are entitled to a reasonable expert fee, we 3

conclude that they have been fully compensated for their reasonable and

necessary post-judgment efforts following our 1991 remand. 

For the foregoing reasons, that portion of the district court's

judgment awarding plaintiffs attorney's fees, expert fees, and costs in the

amount of $202,335.15 is reversed.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.