Perdue v. Kenny A.
From ScotusWiki
Argued October 14, 2009.
Authorship: Scott Street of Akin Gump (with SCOTUSblog's Lyle Denniston covering the cert.-stage proceedings)
Issue: The grant is limited to question one of the petition: Can a reasonable attorney’s fee award under a federal fee-shifting statute ever be enhanced based solely on quality of performance and results obtained when these factors already are included in the lodestar calculation?
Docket: 08-970
Contents |
[edit] Briefs and Documents
[edit] Oral Argument
Transcript (October 14, 2009)
[edit] Merits Briefs
- Brief for Petitioner Sonny Perdue, In His Official Capacity as Governor of Georgia, et al.
- Brief for Respondent Kenny A., By His Next Friend Linda Winn, et al.
- Reply Brief for Petitioner Sonny Perdue, In His Official Capacity as Governor of Georgia, et al.
[edit] Amicus Briefs
- Brief for the States of Alabama, Alaska, Arkansas, Colorado, Florida, Hawaii, Idaho, Indiana, Maine, Maryland, Massachusetts, Michigan, Nebraska, Nevada, New Hampshire, New Jersey, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Utah, Vermont, Virginia, Washington, Wisconsin, Wyoming, and The District of Columbia in Support of Petitioner
- Brief for the United States of America in Support of Petitioner
- Brief for the National School Boards Association in Support of Petitioner
- Brief for the The National Governors Association, National Conference of State Legislatures, National Association of Counties, International City/County Management Association, and International Municipal Lawyers Association in Support of Petitioner
- Brief for the Association County Commissioners of Georgia in Support of Petitioner
- Brief for the Washington Legal Foundation in Support of Petitioner
- Brief for the Old Republic Insurance Company and the National Association of Waterfront Employers in Support of Petitioner
- Brief for Small Private Law Firms That Rely on Statutory Fee Awards in Public Interest Litigation in Support of Respondent
- Brief for NAACP Legal Defense and Education Fund in Support of Respondent
- Brief for the Liberty Legal Institute, the American Center for Law and Justice, the CATO Institute, the Institute for Justice, Liberty Counsel, Alliance the Defense Fund, and the James Madison Center for Free Speech in Support of Respondent
- Brief for the Lawyers' Committee for Civil Rights Under Law, AARP, Alliance for Justice, the American Civil Liberties Union, the Mexican American Legal Defense and Education Fund, the National Disability Rights Network, the National Partnership for Women and Families, the National Urban League, the National Women’s Law Center, and Public Citizen in Support of Respondent
- Brief for Law and Economics Scholars Lucian A. Bebchuk, Albert Choi, Andrew F. Daughety, John J. Donohue III, Theodore Eisenberg, Bruce L. Hay, Avery W. Katz, Herbert M. Kritzer, Jennifer F. Reinganum, and Kathryn Spier in Support of Respondent
- Brief for the Civil Rights Clinic at Howard University School of Law in Support of Respondent
- Brief for the New York State Bar Association, the Pennsylvania State Bar Association, the Ohio State Bar Association, the Bar Association of the District of Columbia, the Iowa State Bar Association, the Tennessee State Bar Association, the Washington Bar Association, the American Association of Jewish Lawyers and Jurists in Support of Respondent
- Brief for the American Association for Justice, Public Justice, P.C., The National Employment Lawyers Association, and the Impact Fund in Support of Respondent
[edit] Certiorari-Stage Documents
- Opinion below (11th Circuit)
- Petition for certiorari
- Brief in opposition
[edit] Oral Argument Recap
It became clear during oral argument in Perdue v. Kenny A.—in which the Court will decide whether a court can ever enhance an attorney’s fee award under Section 1988 based on the quality of representation and the results the attorneys obtain—that the parties’ arguments rest on two central points about the “lodestar” approach to calculating attorney’s fees:
- The State of Georgia believes that Section 1988 fee awards be measured against the “hours worked multiplied by hourly rate” calculation provided by the lodestar.
- The respondent children, meanwhile, believe that the lodestar does not adequately consider the quality of an attorney’s work or the results that the attorney obtains.
Both points have flaws that the Justices pointed out during oral argument. For example, although the Supreme Court has enhanced the importance of the lodestar in Section 1988 cases, there is evidence that Congress did not want the lodestar to be the sole focus of the Section 1988 calculation. Likewise, the Question Presented in this case assumes that the lodestar considers quality of representation and results obtained, suggesting that the children will have a difficult time convincing a majority of the Court to hold otherwise.
But the oral argument showed that the children have greater problems to contend with. The Justices, especially the Chief Justice and Justice Scalia, aggressively questioned former Solicitor General Paul Clement. They worried, for example, about how the Court would quantify the type of “exceptional results” needed to justify a fee enhancement. Told that the Court could leave this to the discretion of district judges, Justice Scalia replied: “You say discretion. I say randomness.”
Only Justice Sotomayor suggested a standard that could guide district judges in deciding whether to enhance an award for results obtained and quality of representation, citing such factors as a discrepancy between the market in which the attorney practices and the market on which his Section 1988 fees are based, as well as the age or experience of an attorney (for example, a brilliant second-year attorney who performs at a level far beyond his years and who, therefore, might be paid at a significantly higher level in the private market). But it was clear that several of the justices would never agree to such a standard.
Of course, that could hardly have surprised the children. It must have worried them to hear skepticism from Justice Breyer, though, who echoed Justice Alito’s concern with giving a district judge discretion to divert millions of dollars of taxpayer money to attorneys simply because the judge thought that the attorneys did a great job.
In the end, only Justices Ginsburg and Sotomayor (and perhaps Justice Stevens) appeared to agree with the children’s strongest argument: that not permitting enhancements based on results obtained and quality of performance, when district judges have the ability to reduce awards based on various factors, will compromise the ability of civil rights plaintiffs to attract competent counsel to represent them. If a majority of the Justices do not believe that argument, it is difficult to see how they can overlook their other concerns and give district judges discretion to enhance fee awards based on the amorphous concepts of results obtained and quality of performance without guaranteeing years of future litigation that could drain state governments of even more money.
[edit] Pre-Argument Articles
[edit] Background
Perdue arose out of Georgia’s dysfunctional foster care system. Respondents’ trial counsel—including lawyers from a non-profit children’s rights advocacy group and private attorneys who took the case as a pro bono matter—sued the State of Georgia in 2002 on behalf of foster children, alleging that the deficiencies in the State’s foster care system violated various federal and state laws, including 42 U.S.C. § 1983. Although the case was filed in state court, the State removed the case to federal court. It initially opposed the children’s efforts to obtain expedited discovery and to enjoin the operation of two emergency shelters in the Atlanta area, but subsequently agreed to close the shelters after a hearing on the matter. The two sides then engaged in extensive discovery, during which the State rejected a request to conduct joint record review. The State also filed a motion for summary judgment and moved to exclude expert witnesses that the children planned to call. The district court eventually denied those motions in December 2004. After a series of mediation sessions aimed at resolving the litigation without trial, in July 2005 the parties agreed to a proposed consent decree that was intended to eliminate the greatest problems in the foster care system through what the district court described as “sweeping” reforms.
In addition to the reforms implemented by the consent decree, the parties also agreed that the children’s lawyers should recover a reasonable amount of attorney’s fees, in accordance with 42 U.S.C. § 1988. However, when the parties failed to agree on an amount for the attorney’s fees, the task fell to the district court. The court first calculated the number of hours that the children’s attorneys reasonably spent on the case (reducing the hours by fifteen percent for excessive, duplicative, and unclear billing entries) and then multiplied those hours by what it determined to be reasonable hourly rates for the various attorneys and paralegals who worked on the case, yielding a “lodestar” figure of roughly $6 million. The court then enhanced the lodestar by a factor of 1.75, to a total of $10.5 million. The court reasoned that: (1) the children’s lawyers did superb work that “far exceeded” the quality of representation the children could have gotten if they had paid for such representation in the private market; and (2) the children’s attorneys achieved “exceptional” success on a “comprehensive scale.” The judge also noted that the children’s lawyers had invested a great deal of their own money in the case, advancing more than $1.7 million to their clients to pay various legal expenses.
On appeal, the Eleventh Circuit affirmed the district court’s decision to enhance the award. Notably, Judge Carnes, who authored the opinion affirming the award, said that he disagreed with the decision but felt bound to follow circuit precedent allowing a judge to enhance a fee award under Section 1988 based on the quality of representation and on the type of results obtained (a position that every federal circuit has adopted). The court of appeals later denied en banc review.
The State filed a petition for certiorari, which the Supreme Court granted with regard to a narrow question: “Can a reasonable attorney’s fee award under a federal fee-shifting statute ever be enhanced based solely on quality of performance and results obtained when these factors already are included in the lodestar calculation?”
[edit] Argument Preview
It would take pages to discuss every argument that the parties and their supporters make in this case, but a few stand out.
On one side, the State and its amici, including the United States, contend that a fee award under Section 1988 cannot include an enhancement based solely on an attorney’s quality of performance and the results the attorney obtains in litigation because doing so would result in double counting – which, the Court has previously indicated, Section 1988 prohibits – and would produce a windfall to attorneys – which, Congress indicated, Section 1988 should not do. Moreover, even if double counting is not prohibited, enhancements are not needed to induce competent counsel to take on civil rights cases and therefore it does not serve the purpose of Section 1988 to authorize them.
The State’s amici echo those arguments but focus on three other themes. First, they contend that allowing enhancements for quality of performance and results obtained would harm the public interest by forcing taxpayers to pay additional compensation to attorneys who do outstanding civil rights work, diverting money that could be used to help implement the very reforms that the attorneys fought to achieve. Second, they say it would violate Congressional intent by leading to arbitrary and unpredictable fee awards. Third, they claim that it would discourage settlements and encourage protracted fee litigation, which would conflict with Congress’s goals in enacting Section 1988.
The children counter that results-based enhancements comply with prior Supreme Court case law and help to ensure – as Congress intended in enacting Section 1988 – that civil rights laws are vigorously enforced. Second, they contend that enhancements are needed to deter governments from opposing claims that, as in this case, even the government itself regards as meritorious. Third, they question whether the lodestar accurately reflects the value of legal services that attorneys provide to civil rights plaintiffs and to society in general and, thus, challenge the use of the lodestar as the barometer for measuring fee awards under Section 1988. Fourth, they claim that it would violate the purpose of Section 1988 to give courts discretion to lower fee awards for lack of success but, at the same time, give them almost no discretion to enhance awards for attorneys who obtain exceptional results and who do great work.
In sum, both sides present compelling policy arguments. But this case is still being argued before the Supreme Court, not Congress, and the Court’s goal is to figure out whether Congress intended to let courts enhance attorney’s fees awards when using the lodestar method. In doing that, it also must consider its prior decisions, in which the Court has heightened the importance of the lodestar while chipping away at the availability of enhancements.
It would be easy for the Court to continue that trend and prohibit enhancements based on results obtained and quality of representation, while directing district courts to adjust their lodestar calculations to accommodate those considerations. Indeed, the phrasing of the question presented suggests that the Court will do just that. But the oral argument may reveal whether some of the justices are willing to reconsider the importance of the lodestar or, at least, to recognize that calculating fees based solely on the lodestar may not fully serve the purpose of Section 1988 unless district judges have the option to enhance the award for truly exceptional results.
[edit] Grant Write-up
Lyle Denniston wrote the following for SCOTUSblog.
The Supreme Court agreed to define when a team of lawyers does such a superb job in a difficult case that it should get a sizeable markup beyond the basic amount of fees earned. The case, in fact, may test whether such a multiplier is ever allowed. The outcome could affect the award of fee enhancements under more than 100 federal laws that allow the winners in a wide array of civil cases to recover their lawyers’ fees.
At issue is a $10,522,405.08 fee recovery that a federal judge in Georgia awarded to attorneys who won a sweeping challenge to abuse and neglect of children in state-supervised foster homes. The case is Perdue (govenor of Georgia) v. Kenny A., et al. (08-970). It will be argued in the next Term starting in October.
The judge, citing his 27 years on the federal bench, said the children’s lawyers “brought a higher degree of skill, commitment, dedication and professionalism to this litigation than the Court has seen displayed by the attorneys in any other case.” The judge found a basic (”lodestar”) fee of $6,012,802.90, and then tacked on a 1.75 upward adjustment. The Eleventh Circuit Court upheld the fee.
The state of Georgia, taking the case on to the Supreme Court, argued that the results that lawyers get in a case, and the quality of the work that they do on the case, are factors that should figure only in calculating the basic, or “lodestar,” fee award. It is double counting, the petition argued, to take results and performance into account again by adding a multiplier.
The Court granted review of this question: “Can a reasonable attorney’s fee award under a federal fee-shifting statute ever be enhanced based solely on qualify of performance and results obtained when these factors already are included in the lodestar calculation?” (The Court denied review of a second question, testing whether enhancement could ever be allowed after a judge had reduced the lodestar claim for seeking payment for too many hours of work.)
The case, involving some 3,000 foster children in Georgia’s two largest counties, Fulton and DeKalb, began in June 2002 and concluded with a consent decree more than three years later. In the deal, the state agreed to take 31 separate steps to improve the lot of foster children, including such commitments as prompt investigation of reports of abuse or neglect, regular visits by caseworkers, licensing of foster homes, limits of each home’s capacity, and prompt delivery of medical and dental care.
The two sides, however, did not agree on attorneys’ fees for the children’s lawyers, as prevailing in the case. The team of lawyers for the children sought a lodestar award of more than $7.1 million, plus an enhancement that would double the award to more than $14.3 million. The state contended that the team had sought payment for too many hours; the judge agreed, and reduced the lodestar by an across-the-board reduction of hours — thus lopping off some $1 million in fees, resulting in the lodestar amount of $6.1 million.
[edit] Links and Further Information
[edit] Media Coverage
- National Law Journal: Conservative, Liberal Groups Unite in Legal Fee Case at High Court (Oct. 13, 2009)
- Washington Post: Justices Weigh $4.5 Million Bonus Awarded Lawyers in Ga. Litigation (Oct. 15, 2009)
- National Law Journal: High Court Justices Doubt Lawyers Should Be Paid Extra for Winning (Oct. 15, 2009)
