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Keith v. Volpe

ELR Citation: 18 ELR 20616
Nos. No. 85-6591, 833 F.2d 850/(9th Cir., 12/03/1987) Attorney fees award aff'd

The court holds that a public interest law firm is entitled to a supplemental award of attorney fees under 42 U.S.C. §1988 and the common benefit doctrine for monitoring the implementation of a consent decree that resolved a challenge to the construction of a freeway in Los Angeles. The court first holds that the Eleventh Amendment does not bar the award against the California Department of Transportation. The Eleventh Amendment does not bar supplemental attorney fee awards against a state made after entry of a consent decree where the state has not consented to pay additional fees and has not violated the decree. The court holds that plaintiffs were prevailing parties under §1988. Attorney services necessary for reasonable monitoring of a consent decree are compensable under §1988. The court rules that a finding of contempt or obstruction is not a prerequisite for a §1988 fee award for post-judgment monitoring activities. The court rules that the existence of separate monitoring entities created by the consent decree does not preclude a fee award for non-duplicative monitoring services performed by a party's counsel. The court holds that the language in the initial fee award reserving the district court's power to make additional awards for services to "enforce" the terms of the decree does not limit the district court's power to grant supplemental awards. The court holds that the district court did not abuse its discretion in setting the amount of the fee award.

A concurring judge notes that the court's opinion should not be construed to authorize attorney fees for the routine monitoring of the day-to-day activities of the separate monitoring entities created by the consent decree.

[Previous decisions in this litigation appear at 2 ELR 20425, 20632, 4 ELR 20076, 20809.]

Counsel for Defendants-Appellants
Frederick Graebe
State Department of Transportation
1120 N St., Sacramento CA 95814
(916) 445-2201

Counsel for Plaintiffs-Appellees
John R. Phillips, Stephen M. Cutler
Center for Law in the Public Interest
10951 W. Pico Blvd., Los Angeles CA 90064
(213) 470-3000

Before Sneed and Boochever, JJ.