Doe v. Fitch ( 2023 )

Case: 22-60481 Document: 00516707275 Page: 1 Date Filed: 04/11/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
April 11, 2023
Summary Calendar
Lyle W. Cayce
No. 22-60481
Clerk
____________
Arthur Doe; Brenda Doe; Carol Doe; Diana Doe;
Elizabeth Doe,
Plaintiffs—Appellees,
versus
Lynn Fitch; Sean Tindell, Commissioner of the Mississippi
Department of Public Safety; Megan Costilow, Director of the
Mississippi Sex Offender Registry; Colonel Randy Ginn, Director of the
Mississippi Highway Patrol; Lieutenant Colonel Charles
Haynes, Director of the Mississippi Bureau of Investigation,
Defendants—Appellants.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:16-CV-789
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Before Stewart, Dennis, and Willett, Circuit Judges.
Per Curiam:*
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*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 22-60481
Defendants Lynn Fitch, Attorney General for the State of Mississippi;
Sean Tindell, the Commissioner of the Mississippi Department of Public
Safety; Megan Costilow, Director of the Mississippi Sex Offender Registry;
Colonel Randy Ginn, Director of the Mississippi Highway Patrol; Lieutenant
Colonel Charles Haynes, Director of the Mississippi Bureau of Investigation,
(collectively, “Defendants”) appeal the district court’s award of attorney’s
fees and costs to Plaintiffs’ counsel, the Center for Constitutional Rights
(“CCR”), who prevailed in a lawsuit challenging a Mississippi law requiring
those convicted under the state’s Unnatural Intercourse statute1 to register
as sex offenders. For the following reasons, we affirm the district court.
After attempting to negotiate with Mississippi officials,
Pseudonymous Plaintiffs Arthur, Brenda, Carol, Diana, and Elizabeth Doe
filed this lawsuit challenging Mississippi’s sex offender registry law requiring
sex offender registration for those convicted under the state’s now-
unconstitutional2 Unnatural Intercourse Statute as facially unconstitutional
under the Fourteenth Amendment’s Due Process clause and as violative of
the Fourteenth Amendment’s Equal Protection clause based on
Mississippi’s allegedly discriminatory application of the statute in not
requiring those with materially indistinguishable convictions to register as
sex offenders. The parties settled after a companion case brought in
Louisiana concluded that a similar state statute violated the Equal Protection
Clause of the Fourteenth Amendment and required Louisiana to remove
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1
The Mississippi Supreme Court has interpreted the Unnatural Intercourse
statute to criminalize oral and anal sex. See, e.g., State v. Davis, 79 So. 2d 452 (Miss. 1955);
State v. Mays, 329 So. 2d 65 (Miss. 1976).
2
Mississippi’s Unnatural Intercourse Statute was rendered unconstitutional in the
wake of Lawrence v. Texas, 539 U.S. 558 (2003), though Mississippi continues to enforce
the statute through its sex offender registry laws.
2
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No. 22-60481
those convicted under the statute from its sex offender registry. See Doe v.
Jindal, 851 F. Supp. 2d 995 (E.D. La. 2012) (Feldman, J.).
After the district court approved the parties’ settlement, which
required Mississippi to remove twenty-eight individuals from its sex offender
registry, and post-conviction relief in state court mooted the remaining
plaintiff’s claims, CCR moved for attorney’s fees pursuant to 42 U.S.C. §
1988. After considering objections from Defendants, the district court
reduced CCR’s attorney’s fees by fifteen percent to account for work on an
unsuccessful motion for summary judgment3 and any clerical work
performed by attorneys. In awarding attorney’s fees to Plaintiffs’ counsel,
the district court followed Circuit precedent requiring it to first calculate the
lodestar amount by determining “the reasonable number of hours expended
on the litigation and the reasonable hourly rates for the participating
lawyers,” “multiply[ing] the reasonable hours by the reasonable hourly
rates,” and then adjusting that “lodestar” amount using the factors outlined
in Johnson v. Georgia Highway Exp., Inc., 488 F.2d 714 (5th Cir. 1974)
abrogated on other grounds by Blanchard v. Bergeron, 489 U.S. 87 (1989). See
Doe v. Fitch, 2022 WL 4002326 (S.D. Miss. Aug. 1, 2022); see also Louisiana
Power & Light Co. v. Kellstrom, 50 F.3d 319, 324-29 (5th Cir. 1995).
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3
Plaintiffs moved for summary judgment a month after filing their complaint,
which was denied based on Defendants’ representation that they needed discovery. In
reducing the award for CCR’s work on the motion for summary judgment, the district court
noted that “it was the State that pressed for costly and timely discovery while the plaintiffs’
pushed for a speedy resolution.” Doe v. Fitch, 2022 WL 4002326, at *8 (S.D. Miss. Aug. 1,
2022). Plaintiffs also moved for class certification, which the district court denied to allow
for discovery, and “though the plaintiffs ultimately abandoned their claim for class
certification, the [district court] credit[ed] their explanation that the settlement for the []
offenders [convicted under Louisiana’s statute], reduced the putative class below the
numerosity threshold.” Id.3
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We review awards of attorney’s fees “for abuse of discretion,
reviewing factual findings for clear error and legal conclusions de novo.”
DeLeon v. Abbott, 687 F. App’x 340, 342 (5th Cir. 2017) (internal citation
removed). Where, as here, the district court provided a clear explanation for
its reasons for the fee award, “[w]e cannot overemphasize the concept that a
district court has broad discretion in determining the amount of a fee
award.” Associated Builders & Contractors of La., Inc. v. Orleans Par. Sch. Bd.,
919 F.2d 374, 379 (5th Cir. 1990); Watkins v. Fordice, 7 F.3d 453, 457 (5th Cir.
1993) (“Due to the district court’s superior knowledge of the facts and the
desire to avoid appellate review of factual matters, the district court has broad
discretion in setting the appropriate award of attorney[’s] fees.”).
On appeal, Defendants argue that: (1) Plaintiffs failed to present
evidence of a need for out-of-state counsel; (2) Plaintiffs only achieved
moderate success; (3) CCR should not be compensated for Plaintiffs’
motions for summary judgment and class certification; and (4) the
unsuccessful due process claim should have been separated from the equal
protection claim, and fees reduced accordingly. The district court carefully
addressed each of these arguments, found sufficient evidence4 to support the
use of out-of-state counsel and that the two claims were so interrelated that
separating them would be impracticable. See Fitch, 2022 WL 4002326, at *4-
*9. Still, the district court imposed an across-the-board reduction to
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4
For example, Cliff Johnson, an Assistant Professor of Law and Director of the
Roderick and Solange MacArthur Justice Center at the University of Mississippi School of
Law, submitted an affidavit in support of CCR’s motion for attorney’s fees averring that
“I am not aware of any [Mississippi] firm that would have been willing to handle a complex
pro bono matter for sex offenders. . . [m]any Mississippi lawyers would not represent sex
offenders for personal reasons or because they are concerned about losing paying matters
from clients or potential clients.” Fitch, 2022 WL 4002326, at *4.
4
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Plaintiffs’ counsel’s fees5 to account for billing judgment, including
Plaintiffs’ failure to prevail on invalidating the statute. Id. at *8, 9 (imposing
reduction to account for “lack of clarity as to whether fees were for clerical
or legal work, the results achieved, and work spent on non-prevailing issues”)
(citing Saizan v. Delta Concrete Products Co., Inc., 448 F.3d 795, 800 (5th Cir.
2006) (reducing award sought by fifteen percent)). In awarding attorney’s
fees and costs to CCR, the district court explained its reasoning and applied
the correct legal standard. Defendants have failed to overcome the deference
we accord the district court and have cited no authority suggesting the
district court abused its discretion. Kellstrom, 50 F.3d at 336 (“We shall not
[] disturb a district court’s decision regarding fees for cost recovery litigation
absent an abuse of discretion.”).
Finding no abuse of discretion, we AFFIRM the district court’s
award of attorney’s fees to CCR.
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5
CCR had already reduced their requested attorney’s fees by ten percent. Fitch,
2022 WL 4002326, at *6.
5