___________ 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 i s a class action challenging the State of North Dakota' s programs and facilities for the mentally retarded. The district

### -2-

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. 8 9 (1984), precludes those portions of the injunction that enforced state l aw, and we remanded for consideration of whether the State now complies with federal law. Associatio n 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 b e ter minated because the State is now in compliance with al l federal constitutional a nd statutory requirements. In support of its position, the State has offered affidavit evidence . .

. that all systemic constitutional violations that may hav e existed at the start of this litigation have been eliminated. Although appellees have contested some of these ass ertions, our reviewof the record suggests that the State has presented a prima facie case of curr ent compliance, particularly under the changed legal environmen t of Youngberg [v. Romeo , 457 U.S. 307 (1982),] and Pennhurst

.

942 F.2d at 1240.

On remand, after broadly defining plaintiffs' rights under federa l law, the district court appointed a Panel of Special Masters "to receive and evalu ate such evidence as the parties present" and to file a repor t with the court concer ning the State's motion to terminate the injunction. After nine months of hearings, the Panel recommended that the injunction be termina ted and the case dismissed. The district court adopted th e Panel's Report in its entirety and directed entry of judgment dissolving all ou tstanding injunctive orders. However, the court also awarde d plaintiffs substantial costs, attorney's fees, and expert fees for their work in opposing the State's motion to terminate the injunction. The Stat e appeals, contesting $202,335.15 of the amount awarded. Concluding that th e contested services were not

### The State a lso 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 exp ert fee award is not authorized under other statutes invoked by plai ntiffs, 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 d istrict court retroactively applied § 1988(c), violating Landgraf v. US I Film Prods. , 114 S. Ct. 1483 (1994). Given our view of the case, we need not take up these important issues.
-3- reasonablyexpended 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 U nited States, a reasonable attorney's fee as par t of the costs." 42 U.S.C. § 1988(b). There can be no doubt that plainti ffs initially prevailed in this lawsuit. See ARC v. Olson , 713 F.2d at 1395-96, reducing the initial attorney's fee award. Th e State pai d substantial fee awards for the period 1980 through 1992. A t issue here are fee requests for 1993-1994, a per iod following the district court's ap pointment of the Special Masters Panel. The State has pai d $11 3,835.65 of the amounts requested without objection. It appeals th e award of additional c laims 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 fee s
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 i s expressly authorized by § 1988(c), first enacted in 1991. On appeal, the State argues that pla intiffs 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).
-4- error in implementing the governing legal standards." McDonald v

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

II.

Complex c ivil rights cases seldom end with the grant of a permanent injunct ion. The injunction must be implemented, that process must b e monitored, and lingering or new disputes over in terpretation of the decree must often be presented to the court for resolut ion. These functions take time and e ffort by the prevailing party's attorney. Therefore, it i s generally accepted that prevailing plaintiffs are entitled to post-judgmen t fee awards for legal services necessary for reasonable monitoring of the decree. See Stewart v. Gates , 987 F.2d 1450, 1452 (9th Cir. 1993); Garrit y v. Sununu , 752 F.2d 727, 738 (1st Cir. 1984). 2

However, not all post-judgment effor ts are compensable. First, when "claims distinctly different from the underlying lawsuit" arise afte r resolution of the main civil rights issues, plaintiffs must prevail o n these unrelated claims to be entitled to a fee a ward for the post-judgment
wor k. Willie M. v. Hunt , 732 F.2d 383, 386 (4th Cir. 1984). Second , compen sable post-judgment work must in any event be reasonable an d
necess ary, measured by the Hensley v. Eckerhart standard that require s 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 unde r the principles of Hen sley ." 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

### -5-

number of hours and t he hourly rate submitted by plaintiffs' counsel were
reas onable. But the court awarded the full amount requested withou t analyzing whether pla intiffs' efforts in 1993 and 1994 were reasonable in light of their level of success. See Hensley , 461 U.S. at 438-40. Partia l success may justify only a partial fee award. S ee 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 rema nded this case in 1991 because some of the relief initiall y afforded plaintiffs violated the Eleventh Amendm ent, and because the State had made a prima facie showing that the permanen t injunction should now be terminated. On remand, the district court appointed a Panel of Specia l Mast ers to consider the State's motion to terminate. This procedur e certainly called for reasonable post-judgment monitoring. Plaintiffs coul d not simply walk away from the Panel's inquiry; t he 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 de fensive effort," and in such situations, even largely unsuccessfu l defensive efforts may be compensable. See also Hatfield v. Hayes , 877 F.2 d 717, 720 (8th Cir. 1989).

Howev er, it was up to plaintiffs to define the extent of thei r partici pation. Plaintiffs had every reason to know, before the Pane l hearings began, the n ature of the State's compliance efforts. Plaintiffs could have acknowledged that those efforts appea red to provide full relief and en gaged in relatively passive monitoring of the State's complianc e evidence to the Panel. Instead, plaintiffs fought the State at every turn , presenting their own slate of opposing experts and examples of allege d class member deprivations. Given the parameters established by our remand order, this was, in

### -6-

substance, the assert ion of new claims for relief. Those new claims were unsuccessful.

The Panel received evidence from November 1992 to August 1993

. Fort y-four witnesses testified, including eleven outside experts. Th e Panel iss ued its Report on November 14, 1994. In recommending that th e perman ent injunction be terminated and the case dismissed, the Pane l concluded:

In the space of twelve hard years, Nort h Dakota has moved from an embarrassing lack of appropriate attention to it s re sponsibilities to become a forward-looking provider of th e most promising methods a nd mechanisms to benefit those whom it once ignored. To deny that recognition is to ignor e volumes of fact and countless days, months, and years of work, not t o mention expense. * * * * * The panel has, in its review of the record, studiedplaintiffs' assertions of federal rights violations. The panel has found that the examples presented appear to be relatively isolated, unc onnected incidents involving oversight, common errors i n judgment, and service inconsistencies between regions. N o wil lful or knowing acts of abuse, neglect, or deprivation o f rights of class members have been left unaddressed. The State has demonstrated that its system for delivering services t o pe rsons with developmental disability no longer has inheren t within it violations of the federal constitutional and lega l rights of those so disabled.

This was a complete rejection of plaintiffs' position. Plaintiffs ha d asserted that the State was not in compliance wi th federal law. The Panel disagr eed, in essence concluding that plaintiffs had received all th e 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 suggest s tha t plaintiffs' fee award must be reduced to an amount that woul d compensate for the limited effort required to en gage in relatively passive monitoring of the Pan el proceedings. A prevailing party who aggressively seeks a greater victory and fails is entitled to a proportionally lesser fee award

### -7-

than a prevailing party who merely defends its victory, even if the defens e is less than complete ly 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

-- exc lusion of "hours that are excessive, redundant, or otherwis e unnecessary," 461 U.S. at 434. The State on appeal has identified numerou s examples of seemingly excessive and unnecessary work, such as the tim e sp ent by attorneys with billing rates in excess of $100 per hou r 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 proceedi ngs 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 tha t 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 pre paration for the si te visit insufficiently detailed or insufficient i n scope. Endless reasons were offered for discrediting th e observations of an expert witness from a site visit : reviewing the Individualized Educa tion Plans of all students in the unit first, a s opposed to afterward or not at all; or talking, o r not talking, to direct c are staff; talking, or not talking, to classroom teachers, or special education directors, or parents, or team members, or assessors, or evaluators, or ca se managers, or th e Qualified Mental Retardation Professional; or no t loo king at the actual habilitation plans of everyone at th e 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 plan s through time to note progress or lack thereof and whether the plan a djusts according to the circumstances; or not trackin g quarterly utilization reviews of service plans.

Perhap s all this effort would have been compensable had plaintiff s 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 fo r reasonable post-judgment monitoring.
-8- to violate federal law. But it was overkill in light of the State' s persuasiv e evidence that the time had come to end the litigation. Thi s necessitates a reduced fee award, because in compensating post-judgmen t monitoring, we must avoid creating a framework in which "the decre e inst itutionalizes 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 canno t sta nd. Normally, when a fee award must be reduced, we remand fo r calculation of an appropriate fee, as the Supreme Court did in Hensley

. But there is no need for that in this case. Pla intiffs 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 ent itled to a reasonable expert fee, we 3

con clude that they have been fully compensated for their reasonable an d 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 th e amount of $202,335.15 is reversed.

A true copy.

Attest:

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