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09/05/90 DISTRICT COLUMBIA v. JERRY M.

September 5, 1990

DISTRICT OF COLUMBIA, ET AL., APPELLANTS
v.
JERRY M., ET AL., APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. Ricardo M. Urbina, Trial Judge

Rogers, Chief Judge, and Schwelb, and Farrell, Associate Judges.

The opinion of the court was delivered by: Farrell

This case is before us on appeal from the trial court's award of $63,497.58 in attorney's fees to Donna Wulkan for her work between June 8, 1988 and June 29, 1989, in enforcing the District of Columbia's compliance with a consent decree in the matter of the complex and lengthy "Jerry M." litigation. See District of Columbia v. Jerry M., 571 A.2d 178 (D.C. 1990). We hold that Ms. Wulkan's services are fully compensable under 42 U.S.C. 1988 (1982), but vacate the award in part and remand to the trial court for further findings as to the reasonableness of the fee award.

I.

The trial Judge entered judgment on the consent decree following a class action filed on behalf of detained and committed juveniles, challenging the conditions under which they are confined at secure facilities maintained by the District of Columbia. The suit "alleged the failure of the District of Columbia and those officials responsible for administering the juvenile facilities . . . to provide appropriate care, rehabilitation, and treatment to them in violation of the Constitution and the District of Columbia Code." In re Jerry M., supra, 571 A.2d at 180. The suit was originally brought by Donna Wulkan, an attorney and the fee claimant here, as next friend on behalf of Jerry M., and by other named plaintiffs representative of the class. At that time, the class was represented by the Public Defender Service (PDS) and the National Prison Project of the American Civil Liberties Union.

Following judgment on the consent decree, *fn1 plaintiffs' counsel moved to add Wulkan as attorney for the plaintiff class. By order of the trial court in February 1988, Wulkan became one of the attorneys for the plaintiff class that were monitoring compliance with the decree. By the time Wulkan entered her appearance in the case, the monitor appointed to oversee the District's compliance with the decree had reported several violations. Wulkan then took part in a series of efforts to enforce the District's adherence to the decree.

On May 6, 1988, appellees filed a motion for emergency relief to reduce overcrowding. After attempts at mediation failed, the trial Judge issued Memorandum Order "C" on October 15, 1988, directing the District to implement measures to remedy overcrowding and understaffing. See In re Jerry M., supra, 571 A.2d at 183 n.16. In addition, appellees filed a motion for a temporary restraining order enjoining unhealthy environmental conditions, and another to prevent continuing violations of the educational provisions of the consent decree. The court granted the first motion and referred the matter of violation of the education provisions to the monitor in accordance with mandatory mediation provisions of the decree. The court gave the parties until September 30, 1988 to determine whether the dispute could be settled without court intervention, and directed the monitor to submit findings and recommendations by October 4 if it could be resolved. Although the monitor submitted findings and recommendations, the plaintiffs advised him that the dispute could not be resolved through the mediation process.

In February 1988, after a critical report from an expert retained by the monitor to evaluate the state of medical care and recommend specific improvements, the District agreed to a Corrective Action Plan implementing the expert's recommendations by June 1988. In October 1988, the monitor reported that "implementation [of the plan to improve medical care] appears to be at an impasse. Improvement has been slow in some areas, non-existent in others; in some areas, medical services have worsened."

In December of 1988, appellees filed a motion for an order directing appellants to show cause why appellants should not be held in civil contempt for not complying with the medical, educational, staffing, and inmate population requirements of the consent decree, and with Memorandum Order "C." After denying appellants' motion to alter or amend Memorandum Order "C", the trial Judge, on March 10, 1989, held the District in civil contempt upon finding that it had violated population limit provisions of the decree and certain provisions of Memorandum Order "C." *fn2 He deferred action on the motion with respect to the medical care provisions until after an evidentiary hearing, held in July 1989, where testimony was taken from members of the District's medical staff and public health officials and from an expert hired by appellees. On September 28, 1989, the Judge entered Memorandum Order "H" finding that the District's failure to implement certain professional medical standards was "contumacious conduct," but that other asserted failures of compliance with the decree did not support a finding of civil contempt.

With respect to the educational provisions, appellees' contempt motion alleged that the District had failed to comply with certain of the monitor's recommendations, while acknowledging that some of the short term recommendations had been satisfied. The Judge ordered the District to show cause why it should not be held in contempt and conducted a hearing on April 3, 1990. On April 13, the District submitted an affidavit from the Director of the Department of Human Services detailing specific actions the "Department is undertaking to ensure compliance with the Consent Decree's provisions governing education, outplacement and suicide prevention." On July 2, 1990, the Judge issued Memorandum Order "I" which, among other things, found the District to be in compliance with the decree provision regarding special education but out of compliance with multiple other educational provisions of the decree.

Ms. Wulkan's name appeared on most of the motions to enforce compliance. Up to June 3, 1988, the District voluntarily paid her $11,618.00 in attorney's fees but stated for the record that it was doing so without admitting her entitlement to such fees. In May of 1989, Wulkan filed a motion for additional attorney's fees under the Civil Rights Attorney's Fees Award Act, 42 U.S.C. 1988, which authorizes an award of attorney's fees to a prevailing party who sought to enforce provisions of the Civil Rights Act, 42 U.S.C. 1983. The District opposed the request but the Judge, after finding that Wulkan had provided "valuable and competent legal services" to the plaintiff class, granted the request for fees in all but minor respects. The District appeals from that order.

II.

Generally, parties to a civil action must bear their own attorney's fees absent a contrary contractual provision or "specific and explicit provisions for the allowance of attorney's fees." Schlank v. Williams, 572 A.2d 101, 108 (D.C. 1990), quoting Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 260, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). As pointed out, Wulkan sought fees under the Civil Rights Attorney's Fees Award Act, which provides in part:

In any action or proceeding to enforce a provision of section[] . . . 1983 . . . of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the cost

42 U.S.C. § 1988.

A. Availability of Fees for Enforcement of a ...


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