Kenny A. v. Sonny Perdue

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 3, 2008
Nos. 06-15514 & 06-15874
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 02-01686-CV-MHS-1
KENNY A., by his next friend Linda Winn,
KARA B., by her next friend Linda Pace,
MAYA C., by her next friend Linda Pace,
PHELICIA D., by her next friend Theresa Roth,
SABRINA E., by her next friend Rebecca Silvey,
KORRINA E., by her next friend Rebecca Silvey,
TANYA F., by her next friend Carol Huff,
PRISCILLA G., by her Next Friend Roslyn M.
Satchel,
BRIANA H., by her next friend Linda Pace, on their
own behalf and on behalf of all others similarly
situated,
Plaintiffs-Appellees-
Cross-Appellants,
versus
SONNY PERDUE, in his official capacity as Governor
of the State of Georgia,
DEPARTMENT OF HUMAN RESOURCES OF THE STATE OF
GEORGIA,
JAMES MARTIN, in his official capacity as
Commissioner of the Department of Human Resources
of the State of Georgia,
DIVISION OF FAMILY AND CHILDREN SERVICES, Fulton
County,
BEVERLY JONES, in her official capacity as
Director of the Fulton County Department of Family
and Children Services,
DEKALB COUNTY DFCS,
WAYNE DRUMMOND, in his official capacity as
Director of the DeKalb County Department of Family
and Children Services,
Defendants-Appellants-
Cross-Appellees,
FULTON COUNTY,
DEKALB COUNTY,
Defendants.
________________________
Appeals from the United States District Court
for the Northern District of Georgia
_________________________
(July 3, 2008)
Before CARNES, WILSON and HILL, Circuit Judges.
CARNES, Circuit Judge:
When asked how much money would be enough for him, John D.
Rockefeller reportedly said: “Just a little bit more.”1 The attorneys for the
1
Robert M. Sharp, The Lore and Legends of Wall Street 233 (1989).
2
plaintiff class in this case want more than just a little bit more. They want a lot
more money than they would receive from multiplying the number of hours they
worked on this case by the hourly rate they charge. And the district court gave
them a lot more—$4,500,000 more—out of the pockets of the taxpayers of
Georgia.
Not caught up in the district court’s spirit of generosity with their money, the
Georgia taxpayers (through their governor and other officials who are defendants)
have appealed the attorneys’ fees award because of that multi-million dollar
enhancement and for other reasons. The plaintiffs’ attorneys, convinced that the
district court was not generous enough, have cross-appealed (through the class they
represent), insisting that they deserve even more than the $10,500,000 total fees
that the court awarded them.
I.
Kenny A. and eight other named plaintiffs in this lawsuit are foster children
in the custody of the Georgia Department of Human Resources. Kenny A. ex rel.
Winn v. Perdue, 454 F. Supp. 2d 1260, 1266 (N.D. Ga. 2006) (Kenny A. III). In
June 2002, on behalf of a class of all foster children in Fulton and DeKalb Counties
and a subclass of African American foster children, the plaintiffs sued the
governor, DHR, its commissioner, Fulton and DeKalb Counties, each county’s
3
department of family and children services, and the director of each of those
departments. Id. at 1266–67. The complaint alleged systemic deficiencies in the
counties’ foster care systems. Id. at 1267. These deficiencies, according to the
complaint, included:
(1) assigning excessive numbers of cases to inadequately trained and
poorly supervised caseworkers; (2) not developing a sufficient number
of foster homes properly screened to ensure the plaintiff children’s
safety; (3) not identifying adult relatives who could care for the
plaintiff children as an alternative to strangers or impersonal
institutions; (4) failing to provide relevant information and support
services to foster parents in order to prevent foster placements from
being disrupted; (5) failing to develop administrative controls such as
an information management system that ensures plaintiff children are
expeditiously placed in a foster home matched to meet the children’s
specific needs; (6) failing to provide timely and appropriate
permanency planning, including failing to provide services that would
enable plaintiffs to achieve their permanency planning goals; (7)
placing plaintiffs in dangerous, unsanitary, inappropriate shelters and
other placements; (8) failing to provide appropriate and necessary
mental health, medical, and education services to children in their
custody; and (9) separating teenage mothers in foster care from their
own children and separating siblings in foster care from each other
without providing visitation.
Id.
The complaint asserted fifteen causes of action under federal and state law.
Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 283 (N.D. Ga. 2003) (Kenny A.
I). The federal law claims included alleged violations, brought under 42 U.S.C. §
1983, of the class members’ Fourteenth Amendment rights to substantive and
4
procedural due process and their First, Ninth, and Fourteenth Amendment rights to
liberty, privacy, and association. Id. The complaint also alleged violations of the
class members’ statutory rights under the Adoption Assistance and Child Welfare
Act of 1980, the Multiethnic Placement Act of 1994, as well as violations of the
early and periodic screening, diagnosis, and treatment program of the Medicaid
Act. Id. The state law claims asserted included violations of the class members’
substantive due process and equal protection rights under the Georgia Constitution,
violations of various Georgia statutes, and claims of nuisance, breach of contract,
and inadequate and ineffective legal representation. Id. The complaint sought
declaratory and injunctive relief, as well as attorneys’ fees and expenses. Id. at 283
n.1.
The district court denied the defendants’ motions to dismiss and for summary
judgment. Kenny A. III, 454 F. Supp. 2d at 1269; Kenny A. ex rel. Winn v.
Perdue, 356 F. Supp. 2d 1353, 1355 (N.D. Ga. 2005) (Kenny A. II); Kenny A. I,
218 F.R.D. at 305. It certified the class of all foster children in the Fulton and
DeKalb County foster care systems, and the subgroup of African American foster
children “who have had, or are subject to the risk of having, their adoption delayed
or denied on the basis of their race or color,” Kenny A. I, 218 F.R.D. at 305, and set
the case for trial, Kenny A. III, 454 F. Supp. 2d at 1268–69.
5
At the same time, the district court referred the case to mediation. Id. at
1269. As that court would later describe it, “over the next four months the parties
attended eighteen separate mediation sessions where they spent more than 110
hours trying to hammer out a settlement agreement.” Id. They were eventually
successful. Id.
In May 2006 the district court gave final approval to the settlement between
the plaintiff class and Fulton and DeKalb Counties; the parties agreed to an
attorneys’ fees award in that part of the case; the district court entered that award,
and it has not been appealed. This appeal arises from the settlement involving the
rest of the defendants, which was approved by the district court in October 2005.
Id. The court summarized that settlement this way:
Its centerpiece is a series of thirty-one outcome measures that State
Defendants have agreed to meet and sustain for at least three
consecutive six-month reporting periods.
The outcome measures, many of them requiring phased-in
results over a two-year period, seek to improve performance in the
following areas: timely commencement and thorough completion of
investigations of reported abuse or neglect; regular visits of foster
children by case workers; approval and licensure of foster homes and
other placements; the percentage of children who are the victims of
substantiated maltreatment while in foster care; the percentage of
children in foster homes that exceed their licensed capacity; the
percentage of children who have experienced multiple moves while in
foster care; and periodic judicial reviews of the safety and status of
foster children.
6
In addition, the Consent Decree requires comprehensive and
periodic delivery of medical, dental, and mental health services to
foster children; a detailed process for improved goal-setting, case
planning and periodic reviews of children’s status while in foster care;
limits on the placement of children in emergency shelters and group
homes and institutions, and protections against overcrowding in foster
homes; and the establishment of reimbursement rates to adequately
compensate providers for caring for foster children.
Moreover, State Defendants commit to reduced caseloads for all
case managers and supervisors; a fully implemented single statewide
automated child welfare information system; and maintaining or
establishing placements and related services identified in a “needs
assessment” to be conducted by a neutral expert. The settlement also
includes processes for the supervision of private contract agencies that
provide homes and services for foster children; improvements in foster
parent screening, licensing and training, as well as foster parent
support and communication; improvements in case manager training;
improvements in processes for addressing suspected abuse or neglect
and suspected corporal punishment of children in foster care; and
improvements in efforts to maximize available federal funding.
Finally, the settlement provides that two child welfare
specialists will serve as the Court’s independent accountability agents
charged with the responsibility of measuring and reporting publicly on
the State Defendants’ compliance with these and other undertakings as
specified in the Consent Decree.
Id. at 1289.
The 2005 settlement agreement further acknowledged that “Plaintiff Class is
entitled to recover its expenses of litigation, including reasonable attorneys’ fees
and nontaxable costs, pursuant to 42 U.S.C. § 1988 and Fed. R. Civ. P. 23(h).”
The agreement said that the parties would “attempt without court intervention to
7
resolve the proper amount of Class Counsel’s fees and expenses of litigation.” If
the parties could not reach an agreement, then “[t]he amount of any award shall be
determined by the Court in accordance with the requirements of applicable law and
procedures.”
That is what happened. Because the parties could not agree on the amount of
fees, the class filed a motion for the court to make a determination and award. Id.
at 1269–70. It was accompanied by 2,500 pages of billing records, by affidavits
from the two lead counsel for the class, and by affidavits from five Atlanta area
attorneys who were not involved in the case. Id. at 1270, 1290. The motion sought
a total of $14,342,860 in fees. Id. Half of that amount, $7,171,434.30, was to
compensate the attorneys and their paralegals for the 29,908.73 hours they claimed
to have worked at rates they sought; those rates ranged from $75 to $495. Id. The
other $7,171,434.30 they sought was to be an enhancement of the fee award for a
job well done. Id.
The defendants objected to some of the hourly rates requested and to the
number of hours claimed. Id. They broke down the 2,500 pages of submitted
billing records into fifteen categories of hours representing different stages of the
case, and argued that in fourteen of those categories the plaintiffs’ attorneys had
expended more hours than was reasonably necessary to effectively represent the
8
class. Id. at 1273–74 & n.5. The defendants also argued that many of the entries
on the billing records were too vague to support a claim for compensation. Id. at
1274.
As for the request that the fee award be doubled by means of a $7 million
enhancement, the defendants objected, arguing that this was not one of the rare
cases in which an enhancement would be appropriate. They argued that enhancing
the fee based on the results obtained would be improper because the skill of the
plaintiffs’ attorneys in litigating the case would already have been taken into
account in setting their hourly rates. Double counting the skill factor would be
inappropriate, the defendants argued.
The district court overruled all of the defendants’ objections to the hourly
rates sought by the plaintiffs’ attorneys. Id. at 1285. It granted in full each hourly
rate requested, ranging from $215 to $495 for plaintiffs’ attorneys, depending on
their relative skill and experience. Id. at 1284–85. The court did not reduce the
requested rates at all even though some of them were New York rates instead of
Atlanta rates, and even though some of the attorneys (for example, Marcia
Robinson Lowry, one of the two lead attorneys) recently had been awarded a
smaller hourly rate for work on another case of exactly the same type. Id. at
9
1284–86. Likewise, the court approved in full the requested hourly rates of $75 to
$150 for paralegal work. Id. at 1285.
The district court did partially sustain the defendants’ objection to the
number of hours that the plaintiffs’ attorneys claimed to have worked on the case.
Id. at 1274. The court agreed with the defendants that some of the entries on
counsel’s billing records were vague and that the hours claimed for eight of the
fifteen billing categories were excessive. Those eight excessively billed categories
were: (1) preparing the complaint and mandatory disclosures; (2) litigating the
preliminary injunction motion; (3) producing and analyzing documents; (3)
litigating discovery motions; (4) conferencing with each other; (5) preparing expert
witness reports; (6) responding to the summary judgment motion; (7) preparing for
trial; and (8) travel. Id. at 1274–84, 1286.
The court dealt with the vague and excessive billing two ways, one for the
non-travel hours and the other for travel hours. It made “an across-the-board 15%
reduction in the number of non-travel related hours claimed by plaintiffs’ counsel.”
Id. at 1286. This 15 percent reduction amounted to 4,371.22 hours being sliced off
the 29,141.46 total number of non-travel hours for which the attorneys had
requested compensation. In dollar terms, that amounted to a reduction of
$1,040,176.92 in non-travel related attorneys’ fees. To remedy the vagueness and
10
excessive billing problem as it related to travel hours, the court halved the hourly
rate, thereby effectively halving the number of travel hours that were compensated
from 767.27 to 383.64, which amounted to a reduction of $118,460.75. When
travel and non-travel fees are considered together, the court reduced the overall
$7,171,434.30 fee request by $1,158,631.40, which amounted to an overall
reduction of 16 percent. After the reductions, the total award was $6,012,802.90
before enhancement. Id.
On the applicability of an enhancement to the fee request, the court overruled
the defendants’ objections. Id. at 1288. The court found that the plaintiffs’
attorneys were entitled to an enhancement because their hourly rate did “not take
into account (1) the fact that class counsel were required to advance case expenses
of $1.7 million over a three-year period with no ongoing reimbursement, (2) the
fact that class counsel were not paid on an on-going basis as the work was being
performed, and (3) the fact that class counsel’s ability to recover a fee and expense
reimbursement were completely contingent on the outcome of the case.” Id.
(footnote omitted).
The district court also found that “the superb quality of [counsel’s]
representation far exceeded what could reasonably be expected for the standard
hourly rates used to calculate the [fee].” Id. at 1288–89. The court commented
11
that “[q]uite simply, plaintiffs’ counsel 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 during its 27 years on the bench.”
Id. at 1289. Finally, the court said that an enhancement was appropriate because
“the evidence establishes that plaintiffs’ success in this case was truly exceptional.”
Id.
For these reasons, and based on the affidavits of some Atlanta area attorneys
urging the court to enhance the fee award (even more than it did), the court
multiplied the $6,012,802.90 fee award by 1.75, thereby enhancing it by 75 percent
or $4,509,602.00. Id. at 1290. That enhancement boosted the total fee award to
$10,522,405.08. Id.
II.
In reviewing the decisions of the district court raised in this appeal and
cross-appeal, we look at questions of law anew but we review the court’s findings
of fact only for clear error. Atlanta Journal & Constitution v. City of Atlanta Dep’t
of Aviation, 442 F.3d 1283, 1287 (11th Cir. 2006). The abuse of discretion
standard applies to the district court’s determination of the number of compensable
billable hours, the hourly rate at which plaintiffs’ counsel is compensated, the
award of costs and expenses, and the enhancement decision. See Am. Civil
12
Liberties Union of Ga. v. Barnes, 168 F.3d 423, 439 (11th Cir. 1999); Richardson
v. Ala. State Bd. of Educ., 935 F.2d 1240, 1248–49 (11th Cir. 1991). In applying
the abuse of discretion standard, we keep in mind that “[w]hen a district court has
discretion, there are usually a range of choices it may make and still be affirmed;
there is not only one right choice for the court to make.” Blasland, Bouck & Lee,
Inc. v. City of N. Miami, 283 F.3d 1286, 1298 (11th Cir. 2002); McMahan v. Toto,
256 F.3d 1120, 1128 (11th Cir. 2001) (same). This is true “even though we would
have gone the other way had it been our call.” Rasbury v. Internal Revenue Serv.,
24 F.3d 159, 168 (11th Cir. 1994).
Of course, “[a] district court by definition abuses its discretion when it
makes an error of law.” Koon v. United States, 518 U.S. 81, 100, 116 S. Ct. 2035,
2047 (1996); accord Schlup v. Delo, 513 U.S. 298, 333, 115 S. Ct. 851, 870 (1995)
(O’Connor, J., concurring) (“It is a paradigmatic abuse of discretion for a court to
base its judgment on an erroneous view of the law.”). We may also find an abuse
of discretion if the district court failed to follow proper procedures in making its
determination, based an award upon findings of fact that are clearly erroneous, or
committed a clear error of judgment. Johnson v. Breeden, 280 F.3d 1308, 1326
(11th Cir. 2002); SunAmerica Corp. v. Sun Life Assurance Co. of Can., 77 F.3d
13
1325, 1333 (11th Cir. 1996); BankAtlantic v. Blythe Eastman Paine Webber, Inc.,
12 F.3d 1045, 1048 (11th Cir. 1994).
III.
In their cross-appeal the plaintiffs contend that the district court abused its
discretion in two respects: (1) by not applying the common fund and common
benefit doctrines, which would have resulted in a fee award substantially higher
than the one they received; and (2) by not compensating them for the $801,864.40
they spent on expert witness expenses. The district court resolved each of those
two issues correctly, and we affirm its decision of them on the basis of the
reasoning contained in its opinion. Kenny A. III, 454 F. Supp. 2d at 1270–72,
1291–92.
IV.
The defendants conceded in the settlement agreement that the class had
prevailed in the litigation and was entitled to recover reasonable attorneys’ fees
under 42 U.S.C. § 1988. That section provides in relevant part that in any action,
like this one, where the plaintiffs seek to enforce their constitutional rights under
42 U.S.C. § 1983, “the court, in its discretion, may allow the prevailing party, other
than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C.
§ 1988(b).
14
In their appeal the defendants contend that the district court abused its
discretion in three ways. Their first contention is that the district court should not
have awarded the plaintiffs’ attorneys all of the photocopying expenses they
claimed. See Kenny A. III, 454 F. Supp. 2d at 1294–95. Although we probably
would not award the full amount of the claimed expenses if we were deciding the
matter in the first instance, we cannot say that the district court abused its
discretion in doing so.
V.
We turn now to the defendants’ other contentions, starting with their
argument that the district court erred in calculating the lodestar amount. “The most
useful starting point for determining the amount of a reasonable fee is the number
of hours reasonably expended on the litigation multiplied by a reasonable hourly
rate.” Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S. Ct. 1933, 1939 (1983). The
product of this formula is the “lodestar,” Loranger v. Stierheim, 10 F.3d 776, 781
(11th Cir. 1994) (per curiam), which is “the guiding light of our fee-shifting
jurisprudence.” City of Burlington v. Dague, 505 U.S. 557, 562, 112 S. Ct. 2638,
2641 (1992).
15
Although the defendants no longer contest the hourly rate component of the
district court’s lodestar calculation,2 they do contend that the district court
compensated the plaintiffs’ attorneys for an unreasonable number of hours. As we
have already explained, the court essentially cut the total number of hours
submitted by 16 percent because of vague entries and excessive billing. See supra
at 10–11. We have held that where the billing records are voluminous, as they are
here, a district court may make a reasonable across the board reduction in hours
instead of engaging in the pick and shovel work necessary to make a more precise
determination. See Loranger, 10 F.3d at 783. Even so, the defendants argue, the
district court’s cut was unreasonably shallow—it should have cut much deeper.
The district court’s reduction of only 16 percent in the submitted hours does
appear charitable, maybe even excessively so, in favor of the plaintiffs’ attorneys,
but we are not quite convinced that it was a clear error of judgment, which is what
we would have to conclude in order to find an abuse of discretion. See Johnson,
280 F.3d at 1326; SunAmerica Corp., 77 F.3d at 1333; BankAtlantic, 12 F.3d at
1048. Even though we would have cut the billable hours more if we were deciding
the matter in the first instance, we cannot say that the result the district court
2
The defendants did object in the district court that the hourly rates requested were too
high, but they have not raised that as an issue on appeal. Accordingly, we have no occasion to
pass on that matter, but we do not mean to imply approval of those hourly rates, which appear to
be on the generous side.
16
reached was outside the range of permissible choices on this record. See Cook ex
rel. Estate of Tessier v. Sheriff of Monroe County, Fla., 402 F.3d 1092, 1103–1104
(11th Cir. 2005); Cooper v. Southern Co., 390 F.3d 695, 711–12 (11th Cir. 2004);
Rasbury, 24 F.3d at 168.
VI.3
The defendants’ final contention is that the district court should not have
granted plaintiffs’ attorneys a $4.5 million enhancement to the $6 million dollar
lodestar amount. That contention can claim the favor of a presumption, and not a
weak one either. The Supreme Court has instructed us that there is a “strong
presumption” that the lodestar figure, without any adjustment, is the reasonable fee
award. Dague, 505 U.S. at 562, 112 S. Ct. at 2641; Pennsylvania v. Del. Valley
Citizens’ Council for Clean Air, 478 U.S. 546, 565, 106 S. Ct. 3088, 3098 (1986)
(Delaware Valley I). That strong presumption can be rebutted only in “rare” and
“exceptional” cases, Delaware Valley I, 478 U.S. at 565, 106 S. Ct. at 3098, where
the fee applicant has shown that without an upward adjustment of the lodestar
amount the fee would be unreasonable, Dague, 505 U.S. at 562, 112 S. Ct. at 2641.
3
The views expressed in Parts I–V and Part VII of this opinion represent the views of a
majority of the Court, consisting of Judges Carnes and Hill. The views expressed in this part,
Part VI, of this opinion represent the views of the author of this opinion alone. The views of
Judge Hill on the question addressed in this part are expressed in his separate concurring opinion.
The views of Judge Wilson are expressed in his separate concurring opinion.
17
Even in the rare and exceptional case where an enhancement is permissible, it must
be “supported by both ‘specific evidence’ on the record and detailed findings by
the lower court.” Delaware Valley I, 478 U.S. at 565, 106 S. Ct. at 3098.
A.
In order to appreciate just how rare and exceptional a case must be for an
enhancement of the lodestar amount to be permissible these days, a review of the
evolution of Supreme Court thinking in this area is necessary. The history of the
issue is one of early, tentative statements indicating more receptiveness to
enhancements than the statements and holdings of later decisions actually permit.
Suggestion has been followed by retrenchment, resulting in a decisional arc that
bends decidedly against enhancements.
Hensley, a 1983 decision, was the Court’s first stab at interpreting what
Congress meant by a “reasonable fee” under § 1988 and similar fee-shifting
statutes. In that case the Court adopted the lodestar method for calculating fees.
Hensley, 461 U.S. at 433–34, 103 S. Ct. at 1939–40. In doing so, the Court said
that “[t]he most useful starting point for determining the amount of a reasonable fee
is the number of hours reasonably expended on the litigation multiplied by a
reasonable hourly rate.” Id. at 433, 103 S. Ct. at 1939. It added, however, that this
“does not end the inquiry,” because “[t]here remain other considerations that may
18
lead the district court to adjust the fee upward or downward, including the
important factor of the ‘results obtained.’” Id. at 434, 103 S. Ct. at 1940. The
context in which that statement was made, however, was not one of upward
enhancement.
Instead, the actual adjustment issue decided in Hensley was whether the
lodestar figure should be reduced for plaintiffs who have achieved only partial or
limited success. See id. at 426, 103 S. Ct. at 1935–36 (“The issue in this case is
whether a partially prevailing plaintiff may recover an attorney’s fee for legal
services on unsuccessful claims.”); see also id. at 434–37, 103 S. Ct. at 1940–41.
The Court decided that the fees should be reduced by the amount spent on claims
that do not succeed. Id. at 440, 103 S. Ct. at 1943 (“Where the plaintiff has failed
to prevail on a claim that is distinct in all respects from his successful claims, the
hours spent on the unsuccessful claim should be excluded in considering the
amount of a reasonable fee.”); see also id. (“[W]here the plaintiff achieved only
limited success, the district court should award only that amount of fees that is
reasonable in relation to the results obtained.”). Even though the issue of
enhancements was not presented in Hensley, the opinion does contain this dicta:
“Where a plaintiff has obtained excellent results, his attorney should recover a
fully compensatory fee. Normally this will encompass all hours reasonably
19
expended on the litigation, and indeed in some cases of exceptional success an
enhanced award may be justified.” Id. at 435, 103 S. Ct. at 1940. The use of “may
be” instead of “will be” was a harbinger of decisions to come.
The next term the Supreme Court decided Blum v. Stenson, 465 U.S. 886,
104 S. Ct. 1541 (1984), which, unlike Hensley, was a case in which the district
court had actually awarded an enhancement. Id. at 891, 104 S. Ct. at 1545. The
court had enhanced the lodestar figure by 50 percent “because of the quality of
representation, the complexity of the issues, the riskiness of success, and the great
benefit to the large class that was achieved.” Id. (quotation omitted). Unimpressed
with that reasoning, the Supreme Court held that awarding the enhancement was an
abuse of discretion. Id. at 896–902, 104 S. Ct. at 1547–50.
While repeating the Hensley opinion’s statement that “in some cases of
exceptional success an enhanced award may be justified,” id. at 897, 104 S. Ct. at
1548 (quotation omitted), the Blum Court qualified that possibility with the
statement that the lodestar amount “is presumed to be the reasonable fee
contemplated by § 1988.” Id. The Court then considered and rejected each of the
district court’s four justifications for the enhancement. It began:
The novelty and complexity of the issues presumably were fully
reflected in the number of billable hours recorded by counsel and thus
do not warrant an upward adjustment in a fee based on the number of
billable hours times reasonable hourly rates. There may be cases, of
20
course, where the experience and special skill of the attorney will
require the expenditure of fewer hours than counsel normally would
be expected to spend on a particularly novel or complex issue. In
those cases, the special skill and experience of counsel should be
reflected in the reasonableness of the hourly rates. Neither complexity
nor novelty of the issues, therefore, is an appropriate factor in
determining whether to increase the basic fee award.
Id. at 898–99, 104 S. Ct. at 1549.
The Blum Court then moved on to the next factor:
The “quality of representation” . . . generally is reflected in the
reasonable hourly rate. It, therefore, may [note the use, again, of the
word “may” instead of “will”] justify an upward adjustment only in the
rare case where the fee applicant offers specific evidence to show that
the quality of service rendered was superior to that one reasonably
should expect in light of the hourly rates charged and that the success
was “exceptional.”
Id. at 899, 104 S. Ct. at 1549 (words in brackets added). Otherwise, the Court said,
“an upward adjustment for quality of representation is a clear example of double
counting.” Id. The Court found the district court’s opinion that “[t]he quality of
work performed by counsel throughout this case was high,” without any specific
evidence to support it, insufficient to justify the enhancement. Id. at 899–90, 104
S. Ct. at 1549 (quotation omitted).
Regarding the results obtained factor, the Court reasoned that successful
results are to be considered when calculating counsel’s hourly rate. Id. at 900, 104
S. Ct. at 1549–50. “Because acknowledgment of the ‘results obtained’ generally
21
will be subsumed within other factors used to calculate a reasonable fee, it
normally should not provide an independent basis for increasing the fee award.”
Id. (footnote omitted).
The Blum Court left for another day the question of whether the risk borne
by the plaintiffs’ counsel in taking the case on a contingency basis could ever
justify an enhancement of the lodestar. Id. at 901 n.17, 104 S. Ct. at 1550 n.17.
Assuming that it could, however, the Court said that the record did not identify any
specific risks to counsel in that case. Id. at 901, 104 S. Ct. at 1550. Accordingly,
the Court vacated the portion of the district court’s order enhancing the plaintiffs’
fees award. Id. at 901–02, 104 S. Ct. at 1550.
The Court’s next “reasonable fee” case was Delaware Valley I.4 The district
court had enhanced the plaintiffs’ lodestar calculation in that case because of the
contingent nature of the fee and the quality of counsel’s work “which culminated in
an outstanding result.” Delaware Valley I, 478 U.S. at 555, 106 S. Ct. at 3093
(quotation omitted). As it had done in Blum, the Delaware Valley I Court
reviewed the district court’s reasons for enhancing the fee award and found all of
4
In Delaware Valley I, the Court reviewed an attorneys’ fees award that was ordered
pursuant to the Clean Air Act § 304(d), 42 U.S.C. § 7604(d). Delaware Valley I, 478 U.S. at
557, 106 S. Ct. at 3094. The Court held that “[g]iven the common purpose of both § 304(d) and
§ 1988 to promote citizen enforcement of important federal policies, we find no reason not to
interpret both provisions governing attorney’s fees in the same manner.” Id. at 560, 106 S. Ct. at
3096. Delaware Valley I has been applied to § 1988 cases by this Court, as well. See, e.g.,
Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1298–99 (11th Cir. 1988).
22
them wanting. This time the Court did not just say that there’s a presumption, but
emphasized that there is a “strong presumption” that the lodestar figure represents
the reasonable fee. Id. at 565, 106 S. Ct. at 3098. The Court explained the basis
for that strong presumption:
A strong presumption that the lodestar figure—the product of
reasonable hours times a reasonable rate—represents a “reasonable”
fee is wholly consistent with the rationale behind the usual fee-shifting
statute, including the one in the present case. These statutes were not
designed as a form of economic relief to improve the financial lot of
attorneys, nor were they intended to replicate exactly the fee an
attorney could earn through a private fee arrangement with his client.
Instead, the aim of such statutes was to enable private parties to obtain
legal help in seeking redress for injuries resulting from the actual or
threatened violation of specific federal laws. Hence, if plaintiffs, such
as Delaware Valley, find it possible to engage a lawyer based on the
statutory assurance that he will be paid a “reasonable fee,” the purpose
behind the fee-shifting statute has been satisfied.
Id.
The Court in Delaware Valley I closed some doors for enhancements that it
had left ajar in earlier cases. It held that the strong presumption that the lodestar
figure is the amount to be awarded—the presumption against
enhancements—cannot be overcome by the special skill and experience of counsel,
the quality of representation, or the results obtained. Id. Those factors, the Court
reasoned, “are presumably fully reflected in the lodestar amount, and thus cannot
23
serve as independent bases for increasing the basic fee award.” Id. This is the
Court’s reasoning:
[W]hen an attorney first accepts a case and agrees to represent the
client, he obligates himself to perform to the best of his ability and to
produce the best possible results commensurate with his skill and his
client’s interests. Calculating the fee award in a manner that accounts
for these factors, either in determining the reasonable number of hours
expended on the litigation or in setting the reasonable hourly rate, thus
adequately compensates the attorney, and leaves very little room for
enhancing the award based on his post-engagement performance. In
short, the lodestar figure includes most, if not all, of the relevant
factors constituting a “reasonable” attorney’s fee, and it is unnecessary
to enhance the fee for superior performance in order to serve the
statutory purpose of enabling plaintiffs to secure legal assistance.
Id. at 565–66, 106 S. Ct. at 3098. Not using the overall quality of performance to
enhance the fee removes “any danger of ‘double counting.’” Id. at 566, 106 S. Ct.
at 3099.
The Delaware Valley I Court reversed the enhancement part of the fee award
insofar as the enhancement was based on the quality of the attorney’s work and the
outstanding result obtained. Id. at 568, 106 S. Ct. at 3099–100. It left undecided
the question of whether the enhancement was proper insofar as it was based on the
contingency nature of the fee—the risk that the attorneys would lose the case and
receive no fees. That issue was to be reargued in the same case the next term, id.,
106 S. Ct. at 3100, but that attempt to decide it misfired when the Court fractured,
24
with no opinion garnering a majority vote. See Pennsylvania v. Del. Valley
Citizens’ Council for Clean Air, 483 U.S. 711, 107 S. Ct. 3078 (1987) (Delaware
Valley II).
It was not until five years later, after the membership of the Court had
changed, that the contingency issue was definitively resolved. In Dague the Court
squarely rejected the proposition that a court “may enhance the fee award above the
‘lodestar’ amount in order to reflect the fact that the party’s attorneys were retained
on a contingent-fee basis and thus assumed the risk of receiving no payment at all
for their services.” Dague, 505 U.S. at 559, 112 S. Ct. at 2639.5 The Court
reasoned that an enhancement for contingency would duplicate in substantial part
factors that had already been considered in arriving at the lodestar. It explained
that “[t]he risk of loss in a particular case (and, therefore, the attorney’s contingent
risk) is the product of two factors: (1) the legal and factual merits of the claim, and
(2) the difficulty of establishing those merits.” Id. at 562, 112 S. Ct. at 2641.
5
The fees in Dague were awarded pursuant to the Solid Waste Disposal Act § 7002(e),
42 U.S.C. § 6972(e), and the Clean Water Act § 505(d), 33 U.S.C. § 1365(d). Dague, 505 U.S.
at 559, 112 S. Ct. at 2639. As it had in Delaware Valley I, the Dague Court held that the
language of these attorneys’ fees statutes are “similar to that of many other federal fee-shifting
statutes; our case law construing what is a ‘reasonable’ fee applies uniformly to all of them.” Id.
at 562, 112 S. Ct. at 2641 (citing 42 U.S.C. § 1988).
25
The second factor, the Court said, is “ordinarily reflected in the
lodestar—either in the higher number of hours expended to overcome the
difficulty, or in the higher hourly rate of the attorney skilled and experienced
enough to do so.” Id. “Taking account of it again through lodestar enhancement
amounts to double counting.” Id. at 563, 112 S. Ct. at 2641.
The Court recognized that, unlike the second contingency factor, the first
one—the relative merits of the claim—is not taken into consideration in
determining the lodestar figure. That is no problem, the Court decided, because the
relative merits of the claim “should play no part in the calculation of the award.”
Id. For one thing, there is always a risk that a case will be lost—“no claim has a
100% chance of success.” Id. As a result, permitting adjustments based on risk
would mean that the “computation of the lodestar would never end the court’s
inquiry in contingent-fee cases.” Id. That would contradict the Court’s repeated
instruction that there is a strong presumption that the lodestar is the fee to be
awarded and adjustments to it are to be the rare exception, not the general rule.
Not only that, the Court said, but awarding enhancements based on the
financial risk in taking the case would also “provide attorneys with the same
incentive to bring relatively meritless claims as relatively meritorious ones.” Id.
The “social cost of indiscriminately encouraging nonmeritorious claims” would be
26
too high, and encouraging attorneys to take less meritorious cases is “an unlikely
objective of the ‘reasonable fees’ provisions.” Id. at 563, 112 S. Ct. at 2642.
Accordingly, the Court concluded that a contingency enhancement is “not
consistent with our general rejection of the contingent-fee model for fee awards,
nor is it necessary to the determination of a reasonable fee.” Id. at 566, 112 S. Ct.
at 2643. The Court in Dague did not merely reverse the application of a
contingency or risk enhancement in that case, but also ruled out one in any case,
“concluding that no contingency enhancement whatever is compatible with the fee-
shifting statutes at issue.” Id. at 565, 112 S. Ct. at 2643.
The Dague decision is the last word we have from the Supreme Court on the
issue of whether, and if so when, the lodestar amount may be enhanced in
calculating the attorneys’ fees under one of the federal fee-shifting statutes.
B.
The district court’s $4.5 million enhancement to the $6 million lodestar
figure in the present case cannot be squared with the Supreme Court decisions we
have discussed. The district court did not explicitly mention, much less give full
effect to, the strong presumption that the lodestar amount is a reasonable fee and
therefore the fee to be awarded. See Dague, 505 U.S. at 562, 112 S. Ct. at 2641
(“We have established a strong presumption that the lodestar represents the
27
reasonable fee, and have placed upon the fee applicant who seeks more than that
the burden of showing that such an adjustment is necessary to the determination of
a reasonable fee.” (quotation and citation omitted)); Delaware Valley I, 478 U.S. at
565, 106 S. Ct. at 3098 (“A strong presumption that the lodestar figure—the
product of reasonable hours times a reasonable rate—represents a ‘reasonable’ fee
is wholly consistent with the rationale behind the usual fee-shifting statute,
including the one in the present case.”).
The district court relied on several factors in granting the multi-million
dollar enhancement to the lodestar figure, most of which are cited in the following
passage from its opinion:
First, the evidence establishes that the quality of service
rendered by class counsel, including their extraordinary commitment
of capital resources, was far superior to what consumers of legal
services in the legal marketplace in Atlanta could reasonably expect to
receive for the rates used in the lodestar calculation. Specifically, the
evidence shows that the hourly rates used in the lodestar calculation
do not take into account (1) the fact that class counsel were required to
advance case expenses of $1.7 million over a three-year period with no
ongoing reimbursement, (2) the fact that class counsel were not paid
on an on-going basis as the work was being performed, and (3) the
fact that class counsel’s ability to recover a fee and expense
reimbursement were completely contingent on the outcome of the
case.FN8 (Chandler Decl. ¶¶ 5–8; Fellows Decl. ¶¶ 5–8; Knowles
Decl. ¶¶ 7–12; Rawls Decl. ¶¶ 5–8; Lowry Decl. ¶ 25; Bramlett Decl.
¶¶ 7(a) & 10, 13–14.)
FN8. A lodestar enhancement cannot be based on
contingency alone. City of Burlington v. Dague, 505 U.S.
28
 557, 112 S. Ct. 2638 (1992). In this case, however, the
risk of nonrecovery is only one of several factors which,
taken together, establish a level of service well beyond
what could reasonably be expected for the rates claimed.
Kenny A., 454 F. Supp. 2d at 1288 (citations omitted). None of the three factors
the district court relied on in that passage to justify boosting the award is a proper
basis for doing so.
1.
Starting from the end of the list, the district court’s reliance on the quality of
service and superior performance, which are essentially the same thing, conflicts
with the Supreme Court’s teachings that those considerations are adequately
accounted for “either in determining the reasonable number of hours expended on
the litigation or in setting the reasonable hourly rates,” and that it is “unnecessary
to enhance the fee for superior performance in order to serve the statutory purpose
of enabling plaintiffs to secure legal assistance.” Delaware Valley I, 478 U.S. at
565–66, 106 S. Ct. at 3098; see also id. at 565, 106 S. Ct. at 3098 (“Hence, if
plaintiffs . . . find it possible to engage a lawyer based on the statutory assurance
that he will be paid a ‘reasonable fee,’ the purpose behind the fee-shifting statute
has been satisfied.”). In this case, the district court specifically considered “the
stellar performance of plaintiffs’ counsel throughout this long and difficult case” in
29
approving their hourly rates, which reached $450 and $495 for lead counsel.
Kenny A. III, 454 F. Supp. 2d at 1284, 1286. Having already been used to
increase the lodestar amount, the quality of the services rendered and superior
performance could not also be used to enhance the lodestar amount that had been
calculated using those higher rates. See Delaware Valley I, 478 U.S. at 565, 106 S.
Ct. at 3098. Double counting simply is not allowed.
It was after the successful settlement had been achieved, after they knew
how well they had performed, after they knew the degree of difficulty involved,
and after they knew how much capital resources and legal effort had been required
that the plaintiffs’ attorneys asked for hourly rates they thought that they deserved.
Over the objections of the defendants, the district court gave them those rates in
full. It did not reduce a single hourly rate for any attorney or paralegal by so much
as a penny.6
In requesting their hourly rates, the lead counsel for the plaintiffs represented
that those rates were adequate, subject to considerations they specified, to
compensate them. Marcia Robinson Lowry, one of the two lead counsel, testified
by affidavit that:
6
The district court did cut the hourly rates for travel time in half, but not in order to
lower the rates. Instead, the reduction was the court’s way of correcting for the attorneys’
excessive billing of time. Kenny A. III, 454 F. Supp. 2d at 1284.
30
The standard hourly rates reflected in Exhibit 2 are fair,
reasonable, and consistent with hourly rates in the Atlanta market for
the price of legal services of comparable quality rendered in cases
demanding similar skill, judgment and performance. These standard
hourly rates do not, however, take into account the fact that class
counsel was required in this case to advance the entire $1.7 million
expense of prosecuting this case for the benefit of the class, or the fact
that class counsel’s compensation was totally contingent upon
prevailing in this action.
Jeffrey O. Bramlett, the other lead counsel, testified by affidavit that: “The
hourly rates set forth in Exhibit 1 correctly reflect the hourly rates my law firm
currently charges and collects from clients who hire us to perform legal services on
a Standard Hourly Rate basis.” However, he further testified:
Standard Hourly Rates are predicated on the assumptions that
the client will pay in full on a 30–60 day cycle, that counsel is not
required to shoulder any significant financial risk of unreimbursed
case expense, and that counsel will be paid currently regardless of the
result ultimately achieved. Here, Class Counsel was forced to advance
case expenses approaching $1.7 million to protect the Class’ interests,
largely because State Defendants refused Plaintiffs’ suggestion of a
neutral case record review that would have saved both sides (and
ultimately the State) duplicative cost. Here, Class Counsel was forced
to personally advance Plaintiffs’ portion of that cost in the face of
State Defendants’ vigorous assertion that it would not and could not
be recovered. Here, Class Counsel’s recovery of any cost, let alone
fee, was utterly dependent upon the contingency of a successful result.
Here, Class Counsel was forced to invest more than $8.85 million of
professional time and out-of-pocket expense over a three-and-one-half
year period with no assurance of any recovery.
There is no indication that Mr. Bramlett’s firm’s regular hourly rates are anywhere
near the low side of the Atlanta legal market or even the midpoint.
31
The position that the two lead counsel took in their affidavits is that the
hourly rates used to calculate the lodestar figure were the same rates paying clients
would have been charged. They each represented that those rates would fully
compensate them except for three facts that the district court listed in its opinion:
“(1) the fact that class counsel were required to advance case expenses of $1.7
million over a three-year period with no ongoing reimbursement, (2) the fact that
class counsel were not paid on an on-going basis as the work was being performed,
and (3) the fact that class counsel’s ability to recover a fee and expense
reimbursement were completely contingent on the outcome of the case.” Kenny A.
III, 454 F. Supp. 2d at 1288.
2.
The first two of those three considerations are delayed payment factors, and
if they were permissible bases for enhancing a fee award, an enhancement would
be required in virtually every class action covered by one of the traditional federal
fee-shifting statutes. It is a rare § 1983 action where those whose rights have been
violated finance the cost of the litigation. Attorneys for the plaintiffs in these types
of cases almost always have to advance the cost of the litigation and do not receive
any payment for their time until the case is completed. That is simply the nature of
the beast. If the delays in reimbursement for costs and payment for services that
32
these cases inevitably entail justified enhancement, there would be an enhancement
in almost every case. We know that cannot be, because the Supreme Court has
instructed us that we must employ a strong presumption against enhancements and
confine them to the rare and exceptional case. Dague, 505 U.S. at 562, 112 S. Ct.
at 2641; Delaware Valley I, 478 U.S. at 565, 106 S. Ct. at 3098.
Particularly instructive on this point is some of the Supreme Court’s
reasoning in concluding that there could be no enhancement for the contingency
nature of a case—for the risk that the plaintiffs would not be paid at all for the
costs they advanced and the time they expended. See Dague, 505 U.S. at 563, 112
S. Ct. at 2641. Because there is always a risk that a case will be lost, permitting
enhancements based on the degree of risk would mean that calculation of the
lodestar would never end the inquiry in a contingent-fee case, and that, the Court
decided, would be unacceptable. Id. Likewise, permitting enhancements for the
delay in compensation for expenses incurred and services rendered would mean
that calculation of the lodestar would be merely the first step, not the presumptive
last step in the process. That would be unacceptable.
Finally, we have said that any delay in payment for professional services
rendered is offset by the fact that the hourly rates used are those that prevail at the
completion of the case instead of the usually lower rates that were in effect at the
33
time the earlier work was done. See Norman, 836 F.2d at 1302 (“[W]here there is a
delay the court should take into account the time value of money and the effects of
inflation and generally award compensation at current rates rather than at historic
rates.”). In this case, as in most, the hourly rates used were those in effect after the
case had been completed. (See R32:495:Ex.C:¶6) (“The hourly rates set forth in
Exhibit 1 correctly reflect the hourly rates my firm currently charges and collects
from clients who hire us to perform legal services on a Standard Hourly Rate
basis.”). That covers two of the three factors the district court relied on in
determining that the hourly rates were underinclusive and an enhancement was
warranted. Kenny A. III, 454 F. Supp. 2d at 1288.
3.
The third factor was the contingent nature of the case. Enhancing a lodestar
based on contingency is flatly forbidden by the Dague decision. The district court
was under the mistaken impression that the Dague rule forbids only an
enhancement based on contingency alone. Id. at 1288 n.8. The rule is not so
limited. The Supreme Court’s description of the scope of its holding leaves no
wiggle room. The Court stated that it was “concluding that no contingency
enhancement whatever is compatible with the fee-shifting statutes at issue.”
Dague, 505 U.S. at 565, 112 S. Ct. at 2643. In case anyone missed the point of
34
that, the Court unequivocally stated in the penultimate sentence of its opinion:
“[W]e hold that enhancement for contingency is not permitted under the
fee-shifting statutes at issue.” Id. at 567, 112 S. Ct. at 2643–44. Period.
Even if we were to go beyond that clear language of the Supreme Court’s
command, the reasons it gave for concluding that contingency enhancements are
incompatible with the fee-shifting statutes apply with equal force to using
contingency as one of several reasons for an enhancement. For example, taking the
risk of loss into account both in the lodestar and in an enhancement amounts to
double counting the difficulty of the case, id. at 562–63, 112 S. Ct. at 2641,
regardless of whether contingency is the sole enhancement factor. No double
counting means no double counting. Allowing contingency to figure into an
enhancement to any extent would also provide attorneys with an incentive to bring
relatively meritless claims. See id. at 563, 112 S. Ct. at 2642; see also id. at 566,
112 S. Ct. at 2643 (“Contingency enhancement would make the setting of fees
more complex and arbitrary, hence more unpredictable, and hence more litigable.”).
That, the Court reasoned, would be bad. Dague, 505 U.S. at 566, 112 S. Ct. at
2643.
In summary, none of the three factors that the district court enumerated as a
basis for determining that the professional services rendered by plaintiffs’ counsel
35
were “far superior to what consumers of legal services in the legal marketplace in
Atlanta could reasonably expect to receive for the rates used in the lodestar
calculation,” Kenny A. III, 454 F. Supp. 2d at 1288, is a permissible basis for
enhancing the lodestar amount. An enhancement based on them is inconsistent
with controlling Supreme Court decisions.
4.
Making a further attempt to justify the enhancement, the district court also
stated that:
In addition, based on its personal observation of plaintiffs’
counsel’s performance throughout this litigation, the Court finds that
the superb quality of their representation far exceeded what could
reasonably be expected for the standard hourly rates used to calculate
the lodestar. Quite simply, plaintiffs’ counsel 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
during its 27 years on the bench. The foster children of Fulton and
DeKalb Counties were indeed fortunate to have such unparalleled
legal representation, and the Court would be remiss if it failed to
compensate counsel for this extraordinary level of service to their
clients.
Id. at 1288–89. This rationale is little more than a restatement of the district court’s
position that the lodestar amount should be enhanced because of the quality of the
representation. Two points about that.
First, the district court itself found that plaintiffs’ attorneys had submitted
vague records and overbilled in eight of fifteen categories, forcing the court to cut
36
more than 4,700 hours off those they claimed, amounting to a reduction of more
than $1 million of billable time. See supra at 10–11. And, as we have indicated, if
anything, the district court was too kind to plaintiffs’ attorneys in that respect. See
supra at 15–17. Any kindness aside, in Delaware Valley I the Supreme Court held
that the “elimination of a large number of hours on the grounds that they were
unnecessary, unreasonable, or unproductive is not supportive of the court’s later
conclusion that the remaining hours represented work of ‘superior quality.’”
Delaware Valley I, 478 U.S. at 567, 106 S. Ct. at 3099; see generally id. at 554 n.2,
106 S. Ct. at 3093 n.2. The holding reflects the common sense idea that bad and
excessive billing is inconsistent with superb lawyering. The district court failed to
consider that inconsistency in its findings.
The second, and more fundamental, point about the district court’s reliance
on the quality of the representation as a ground for enhancing the lodestar amount
is that it amounts to double counting and is contrary to the Supreme Court’s
decision in Delaware Valley I. As we have already explained, in that decision the
Court reversed an enhancement for superior performance, holding that “the special
skill and experience of counsel” and “the quality of representation” are
“presumably fully reflected in the lodestar amount, and thus cannot serve as
independent bases for increasing the basic fee award.” Delaware Valley I, 478
37
U.S. at 565, 106 S. Ct. at 3098 (quotation and citation omitted); see also id. at 566,
106 S. Ct. at 3098 (“In short, the lodestar figure includes most, if not all, of the
relevant factors constituting a ‘reasonable’ attorney’s fee, and it is unnecessary to
enhance the fee for superior performance in order to serve the statutory purpose of
enabling plaintiffs to secure legal assistance.” (emphasis added)).7
The final reason the district court gave for the $4.5 million enhancement was
that “plaintiffs’ success in this case was truly exceptional.” Kenny A. III, 454 F.
Supp. 2d at 1289. The result was so good, the court said, that: “After 58 years as a
practicing attorney and federal judge, the Court is unaware of any other case in
which a plaintiff class has achieved such a favorable result on such a
comprehensive scale.” Id. at 1290. Not only that, but the district court also said
that “even if the plaintiffs had prevailed in a trial of this case, it is doubtful that
7
The Court in Delaware Valley I also said that “[b]ecause considerations concerning the
quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable
hourly rate, the overall quality of performance ordinarily should not be used to adjust the
lodestar, thus removing any danger of ‘double counting.’” Delaware Valley I, 478 U.S. at 566,
106 S. Ct. at 3099. Judge Wilson’s concurring opinion reads the words “normally” and
“ordinarily” to eviscerate the Court’s clear instruction that “it is unnecessary to enhance the fee
for superior performance in order to serve the statutory purpose of enabling plaintiffs to secure
legal assistance.” Id. That reading, which infers too much from two words, would license courts
to award enhancements for superior performance or results in any case where the performance or
result was anything better than “ordinary” or “normal,” thereby contradicting the Court’s clear
instruction that there is a strong presumption against an enhancement for any reason and that they
should rarely be granted for any reason. Id. at 565, 106 S. Ct. at 3098. That reading would also
be inconsistent with much of what the Court has said on the subject, contradicting, for example,
the clear implication of the Court’s later teachings in the Dague case. See infra at 40–42.
38
they would have obtained relief as ‘intricately detailed and comprehensive’ as that
contained in the Consent Decree.” Id. at 1289–90.
To the extent that the district court rewarded plaintiffs’ counsel with an
enhancement for obtaining better results than the class would have received had the
case been resolved on the merits, that is plainly wrong. The purpose of the fee-
shifting statutes, as the Supreme Court explained in Delaware Valley I, is “to
enable private parties to obtain legal help in seeking redress for injuries resulting
from the actual or threatened violation of specific federal laws.” Delaware Valley
I, 478 U.S. at 565, 106 S. Ct. at 3098. The statutes are designed to ensure that civil
rights plaintiffs are adequately represented by counsel. See Hensley, 461 U.S. at
429, 103 S. Ct. at 1937 (“The purpose of § 1988 is to ensure ‘effective access to the
judicial process’ for persons with civil rights grievances.” (quoting H.R. Rep. No.
94-1558, at 1 (1976))). For that reason, a fee award should “result[] in fees which
are adequate to attract competent counsel, but which do not produce windfalls to
attorneys.” Blum, 465 U.S. at 893–94, 104 S. Ct. at 1546 (quoting S. Rep. No. 94-
1011, at 6 (1976), reprinted in 1976 U.S.C.A.A.N. 5908, 5913).
Stated from the other direction, the fee-shifting statutes are not designed to
provide representation that will win plaintiffs more than a correct application of
substantive and remedial law entitles them to receive. Their purpose is not to
39
provide representation that will secure settlement relief that is more “intricately
detailed and comprehensive,” Kenny A. III, 454 F. Supp. 2d at 1289–90, than the
plaintiffs would have received if their claims had been litigated to final judgment.
The purpose of the statutes, most assuredly, is not to provide plaintiffs with
representation that dazzles or bedazzles the district court judge. Fee awards should
be calculated in a way that furthers the purpose of the fee-shifting statutes; they
should not be used to encourage or reward results that go beyond that purpose. See
Blum, 465 U.S. at 893–95, 104 S. Ct. at 1546–47.
Some of the discussion in the Dague opinion is useful in understanding why
enhancements should not be given for merits-exceeding results. As we have
recounted, in that case the Supreme Court rejected the idea of enhancements for
contingency or risk of loss in part because permitting them would provide attorneys
with some incentive to bring relatively meritless claims. Dague, 505 U.S. at 563,
112 S. Ct. at 2641–42. The social cost of encouraging attorneys to press claims of
dubious merit would be too high, the Court reasoned, and providing attorneys with
incentives to bring them is “an unlikely objective of the ‘reasonable fees’
provision.” Id. at 563, 112 S. Ct. at 2643.
A result that obtains more or better relief than plaintiffs are entitled to
receive under the law is, to the extent it exceeds their entitlement on the merits,
40
analogous to relief on a meritless claim. Just as Dague instructs us that fee awards
should not underwrite efforts to obtain relief where none is due under the law,
neither should they underwrite efforts to receive more or better relief than that due
under the law. Just as the societal costs for fee awards for non-meritorious claims
are too high, so also are they too high for results that exceed what the law allows.
Just as encouraging non-meritorious claims cannot have been an objective of the
fee-shifting provisions, neither can encouraging results that go beyond what the
law allows have been an objective.
To put it in an either-or manner, superb results are either what a fair
application of the law produces, which means that they are not truly “superb,” or
they are results that exceed what the law allows and for that reason are beyond the
purpose of the fee-shifting statutes. Those statutes are designed to provide a
reasonable fee for a reasonable result, not an extraordinary fee for a result that goes
beyond what the law would provide if the claims were litigated to their correct
conclusion on the merits.
Look at it this way. A merits-exceeding result for plaintiffs must be the
product of one, or some combination, of the following factors: superior lawyering
by plaintiffs’ counsel, bad lawyering by defendants’ counsel, poor decision making
by the court, or dumb luck. The Supreme Court held in Delaware Valley I that
41
superior lawyering by the plaintiffs’ counsel is not a proper basis for an
enhancement. Delaware Valley I, 478 U.S. at 565–68, 106 S. Ct. at 3098–100.
So, the first possible cause of results that go beyond the merits cannot be used to
justify an enhancement. Nor can it plausibly be argued that plaintiffs’ attorneys
ought to reap a windfall, and defendants ought to have to pay more in fees than
they otherwise should, because of bad lawyering on the defense side. Surely a
defendant suffers enough from the additional relief granted against it because of
inferior representation without making the defendant pay a surcharge to the other
side for the privilege of having been the victim of bad lawyering. Nor can it be
argued, with tongue out of cheek, that fees should be increased to reward plaintiffs’
attorneys for being on the side that happens to benefit from bad judging or good
luck. That exhausts the possible explanations for excessively favorable results, and
none supports awarding an enhancement.
5.
The district court relied to some extent on four of the five affidavits that the
plaintiffs’ attorneys in this case obtained from their friends who do similar work.
Kenny A. III, 454 F. Supp. 2d at 1290.8 The district court found that the affiants
8
It is unclear why, in its discussion of the affidavits, the district court omitted any
discussion of the one signed by Ralph Goldberg. See Kenny A. III, 454 F. Supp. 2d at 1290. For
the sake of completeness, we will include it in our discussion.
42
were “disinterested Atlanta attorneys.” Id. That finding is clearly erroneous. At
oral argument, one of the two lead counsel for the plaintiffs conceded that he not
only had recruited these attorneys to provide the affidavits but that in the past he
had also supplied some of them with similar affidavits to help boost their own fee
awards.9
Aside from the need to support those who support them, the lawyers who
signed the affidavits have a financial interest in keeping the fee award in this case
and every case like it as high as possible. The higher this fee award is the more
Four of the five affidavits indicate that they are from attorneys who practice regularly as
plaintiffs’ lawyers depending on attorneys’ fee awards. The lone exception is John Chandler,
whose affidavit indicates that although most of his work has been on the defense side he has also
served as counsel for some plaintiffs’ classes.
9
Court: Who selected those lawyers who served as experts?
Bramlett: I sought those witnesses out. I mean the Court didn’t say–
Court: I would be shocked if you told me you had never filed an affidavit
for one of them.
Bramlett: You would be shocked and that would be incorrect. But, but the
fact is that all four of these lawyers are highly experienced, highly
competent, have practiced law in the Atlanta market–
Court: And highly interested in keeping the rates up and the multipliers
as high as possible–
Bramlett: Ah.
43
useful it will be as precedent for the lawyer signing the affidavit when he seeks a
high fee award in his own cases. The affiants are anything but “disinterested.”10
The lodestar amount will never suffice for attorneys who practice in this
area. They will always believe, in all sincerity, that they deserve more and that the
justice system will function better if they are paid more. Lawyers who handle
these kinds of cases cannot be disinterested witnesses because they are financially
interested. To state this is not to slam lawyers in general or plaintiffs’ lawyers in
particular. It simply recognizes that because self-interest is hard-wired into human
circuitry, no group is disinterested when it comes to the question of what members
of the group are to be paid. Cf. H.L. Mencken, A Little Book in C Major 22 (John
Lane Co. 1916) (“It is hard to believe that a man is telling the truth when you know
that you would lie if you were in his place.”).
Aside from the obvious self-interest of the affiants, the contents of the
affidavits that were filed in this case are also flawed in other ways. For example, in
each of them the affiant solemnly swore that the amount of compensable time
10
The concurring opinion states that “[i]t cannot be reasonably contended that the able
and experienced district judge in this case never considered the possibility that the affiants . . .
could derive an indirect benefit from the precedential value of a high fee award.” See infra at
83–84 (Wilson, J., concurring specially). Actually, the able and experienced district court judge
himself explicitly found that the affiant attorneys were “disinterested.” That finding, which
underlay any credit the court gave to the affidavits, is clearly erroneous. It just is not true.
44
claimed in this case was “reasonable,”11 was “reasonable, fair, and fully
compensable,”12 or was “fair, reasonable, and fully deserving of adequate and full
compensation.”13 Yet, we know those assertions are not true. As we have already
noted, the district court found that plaintiffs had inflated the number of hours for
which they were due compensation in most of the fifteen billing categories and by a
substantial amount. Kenny A. III, 454 F. Supp. 2d at 1274–84, 1286; supra at
10–11. The court’s finding, which is being affirmed by this Court, that the hours
submitted were not reasonable contradicts a key premise in every one of the lawyer
affiants.
All five of the affidavits urged the district court to enhance the fee award
based on the fact that plaintiffs’ counsel advanced the cost of expenses.14 That is
not a permissible basis for an enhancement. See supra at 32–34. All of the
affidavits urged the court to enhance the fee award because of the risk or
11
(R32:495:Ex.F:4) (affidavit of John Chandler); (R32:495:Ex.G:4) (affidavit of Henry
D. Fellows, Jr.); (R32:495:Ex.H:4) (affidavit of James C. Rawls).
12
(R32:495:Ex.E:4–5) (affidavit of Ralph Goldberg).
13
(R32:495:Ex.D:5) (affidavit of Ralph I. Knowles, Jr.) (emphasis omitted).
14
(R32:495:Ex.D:6–8, 11) (affidavit of Ralph I. Knowles, Jr.); (R32:495:Ex.E:5–6)
(affidavit of Ralph Goldberg); (R32:495:Ex.F:4–5) (affidavit of John Chandler);
(R32:495:Ex.G:4–5) (affidavit of Henry D. Fellows, Jr.); (R32:495:Ex.H:4–5) (affidavit of James
C. Rawls).
45
contingency factor.15 That, too, is an impermissible factor for an enhancement, as
the concurring opinion in this case concedes. See infra at 82 (Wilson, J.,
concurring specially). The Supreme Court itself has specifically ruled it out. See
supra at 34–36. Four of the affidavits even urged the court to base its fee award on
the common fund or common benefit doctrines,16 which the district court correctly
concluded was not legally permissible or even possible. See Kenny A. III, 454 F.
Supp. 2d at 1270–72; supra at 14. The fact that the opinions expressed in all five
of the affidavits were based on consideration of several improper factors makes any
finding of the district court based on the affidavits clearly erroneous, and it renders
any reliance the court placed on those affidavits an abuse of discretion. As we
have recognized, “[i]t would be a paradigmatic abuse of discretion for a court to
base its judgment on an erroneous view of the law.” McNair v. Allen, 515 F.3d
1168, 1173 (11th Cir. 2008) (internal marks omitted) (quoting Schlup v. Delo, 513
U.S. at 333, 115 S. Ct. at 870 (O’Connor, J., concurring)); see also Koon, 518 U.S.
at 100, 116 S. Ct. at 2047 (“A district court by definition abuses its discretion when
15
(R32:495:Ex.D:6–8, 11) (affidavit of Ralph I. Knowles, Jr.); (R32:495:Ex.E:5–6)
(affidavit of Ralph Goldberg); (R32:495:Ex.F:4–5) (affidavit of John Chandler);
(R32:495:Ex.G:4–5) (affidavit of Henry D. Fellows, Jr.); (R32:495:Ex.H:4–5) (affidavit of James
C. Rawls).
16
(R32:495:Ex.D:8) (affidavit of Ralph I. Knowles, Jr.); (R32:495:Ex.F:5) (affidavit of
John Chandler); (R32:495:Ex.G:4–5) (affidavit of Henry D. Fellows, Jr.); (R32:495:Ex.H:5)
(affidavit of James C. Rawls).
46
it makes an error of law.”); United States v. Hall, 349 F.3d 1320, 1323 (11th Cir.
2003) (explaining that if a district court decision is “based on an error of law, then
it is by definition an abuse of discretion”). It is no less an abuse of discretion for a
district court to base its decision on affidavits that are themselves based on legally
erroneous assumptions.
Were it otherwise, there would be no end to enhancements and no limit to
them. In every case where an established member of the Bar seeks an enhancement
he will be able to get his colleagues who are interested in keeping fee awards as
high as possible to sign affidavits stating that the only thing that will ensure
adequate representation in cases like that one is a multi-million dollar
enhancement. And some district court judges will credit those interested affiants as
“disinterested attorneys.”
But none of this and none of the multiple, specific, and serious defects in the
affidavits that were filed in this case should obscure the more fundamental point,
which is that enhancements for superior performance and results are not
permissible, no matter how much the interested members of this particular segment
of the bar might want them to be. See supra at 36–42. Supreme Court decisions
cannot be overruled by affidavits.
47
6.
Our conclusion that the enhancement to the lodestar amount in this case was
improper does not mean that one will never be appropriate under any
circumstances. If, as the Supreme Court has instructed us, the proper calculation of
the lodestar amount leaves “very little room” for enhancements, which may be
proper only in “rare” and “exceptional” cases, Delaware Valley I, 478 U.S. at
565–66, 106 S. Ct. at 3098, where is that little room—and what are those rare and
exceptional cases that may fit within it? We can think of some.
Suppose, for example, that an attorney’s representation vindicates the federal
rights of an unpopular client and as a result that attorney suffers a loss of standing
in the community which damages his practice and income. The kind of situation
we have in mind was discussed by Judge Frank M. Johnson, Jr., albeit not on the
issue of enhancing a lodestar amount. Actually, the discussion came before the
enactment of the § 1988 fee-shifting statute and was in the context of deciding the
amount of fees that should be awarded by the court through the exercise of its
equitable power. NAACP v. Allen, 340 F. Supp. 703 (M.D. Ala. 1972), aff’d in
relevant part, 493 F.2d 614 (5th Cir. 1974). In deciding how much the attorney
should receive, Judge Johnson stated:
[A] lawyer representing black plaintiffs in an employment
discrimination case, or in any civil rights litigation, is likely to suffer
48
social, political and community ostracism. This likelihood is
multiplied, of course, in a case such as the present one in which
plaintiffs have sued high-ranking state officials and have alleged and
proved racial discrimination. Even more damaging to an attorney
involved in such litigation is the probability that he will be estranged
from other members of his profession who are unwilling to participate
in, or even lend moral support to, suits seeking to vindicate the public
good.
Id. at 710.
We hope that three-and-a-half decades after those words were written in the
Allen case attorneys who represent victims of racial discrimination no longer suffer
social, political, or professional ostracism. But attorneys who represent other types
of plaintiffs might. It could happen to an attorney who represents a pedophile
attacking a sexual offender registration law on Due Process grounds, or perhaps to
an attorney in a small Bible Belt town who succeeds in having a popular public
religious practice enjoined as contrary to the Establishment Clause. Whether those
circumstances, and others we have not mentioned, would be proper ones for
enhancing the lodestar amount are issues for other days. For now it is enough to
recognize the possibility and to point out that the “rare” and “exceptional”
circumstances that we have mentioned would be more likely to fit within the “very
little room” that the Supreme Court has told us is left for enhancements. Delaware
Valley I, 478 U.S. at 565–66, 106 S. Ct. at 3098. The Supreme Court decisions on
fee-shifting do not clearly preclude an enhancement of the lodestar amount in those
49
circumstances. And an enhancement in those circumstances is less likely to result
in double counting, or to encourage meritless lawsuits, or to go beyond the basic
purpose of the fee-shifting statutes than the enhancement that the district court
awarded in this case does.
Representing children who find themselves in foster care is not the same as
representing activist atheists in the Bible Belt or pedophiles anywhere. The
plaintiffs’ attorneys in this case do not, and reasonably could not, claim to have
suffered any social or professional ostracism, nor do they contend that their victory
here will somehow damage their legal practice. To the contrary, vindicating the
rights of helpless children is the kind of accomplishment that brings professional
accolades and enhances one’s standing in the community. It is to that type of
enhancement, instead of a monetary one, that the attorneys must look for any
satisfaction beyond the $6,012,802.90 they are already receiving for their work in
this case.
And Mr. Bramlett, for one, has done so. The “Attorney Profile” on his law
firm’s website boasted of his “track record of results in class action litigation,”
50
listing three of his biggest successes.17 The one that was discussed the most was
described as follows:
Prosecution of class action in conjunction with New York’s
Children’s Rights, Inc. resulting in systematic reform of State of
Georgia’s dysfunctional foster care system and establishing that foster
children have a right to counsel.
The federal judge who presided over the case for Georgia’s
foster children wrote of the work performed by the legal team led by
Jeff and Marcia Robinson Lowry of New York’s Childrens’ Rights,
Inc.: “[P]laintiffs’ counsel 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 during its
27 years on the bench. . . . After 58 years as a practicing attorney and
federal judge, the Court is unaware of any other case in which a
plaintiff class has achieved such a favorable result on such a
comprehensive scale.” 454 F. Supp. 2d at 1289–90.[18]
The profile also recounted that Mr. Bramlett received the Elbert P. Tuttle
Jurisprudence Award from the Anti-Defamation League “for dedication to justice
and fair treatment for all people.”19 He received that award in 2007 and he was
17
Bondurant, Mixson & Elmore LLP, Jeffrey O. Bramlett Attorney Profile,
http://www.atlantageorgiatriallawyers.com/attorneys/business_torts_lawyer_bramlett.html (last
visited Dec. 8, 2007).
18
Bondurant, Mixson & Elmore LLP, Jeffrey O. Bramlett Attorney Profile,
http://www.atlantageorgiatriallawyers.com/attorneys/business_torts_lawyer_bramlett.html (last
visited Dec. 8, 2007).
19
Bondurant, Mixson & Elmore LLP, Jeffrey O. Bramlett Attorney Profile,
http://www.atlantageorgiatriallawyers.com/attorneys/business_torts_lawyer_bramlett.html (last
visited Dec. 8, 2007).
51
also chosen as President-elect of the Georgia State Bar that same year.20 Those
honors came the year after the judgment that he helped secure was entered in this
lawsuit. It appears that, if anything, Mr. Bramlett’s professional standing and
prestige, as well as his earning ability, have been enhanced as a result of his service
as one of the lead counsel for the foster children.
The other co-lead counsel for the foster children in this case has not suffered
any reduction in professional standing or livelihood because of her work in it,
either. To the contrary, what she did in this case has furthered her credentials, her
reputation, her chosen lifework, and the purpose of her organization. Marcia
Robinson Lowry has litigated on behalf of children’s welfare for more than a
quarter of a century. She has “directed major litigation efforts in jurisdictions
throughout the United States designed to promote major reform of child welfare
systems.” (R32:495:Ex.B:2.)
Ms. Lowry founded and is the Executive Director of the Children’s Rights
Group, a non-profit organization that advocates and litigates on behalf of children.
The organization’s website explains that, among other things, “Children’s Rights
files class action lawsuits on behalf of classes of abused and neglected children
20
Bondurant, Mixson & Elmore LLP, Jeffrey O. Bramlett Attorney Profile,
http://www.atlantageorgiatriallawyers.com/attorneys/business_torts_lawyer_bramlett.html (last
visited Dec. 8, 2007).
52
who have contact with public child welfare systems, to enforce their legal rights.
The goal of these lawsuits is to improve the functioning of state child welfare
systems . . . .” 21
As with any organization that is largely dependent upon donations and
grants, Children’s Rights cannot afford to hide its achievements, and it has not
been shy about what it achieved in this case. In at least four press releases over the
course of the lawsuit, Children’s Rights trumpeted what it had done and was doing
for “some of Atlanta’s most vulnerable citizens,”22 and it proudly proclaimed that
“[a]fter so many years of failure and broken promises by the state, this lawsuit has
given these abused and neglected children a voice.”23 The organization described
one of the district court’s rulings as “a landmark decision nationally and a huge
victory for the rights of abused and neglected children.”24 It later referred to the
21
Children’s Rights, Frequently Asked Questions,
http://www.childrensrights.org/site/PageServer?pagename=faq#Lawsuit (last visited June 5,
2008).
22
Press Release, Children’s Rights, New Settlement Guarantees the Right to Legal
Counsel for Abused and Neglected Children in DeKalb County, Georgia,
http://www.childrensrights.org/pdfs/press_releases/DeKalbCountySettle3%20231.pdf (last
visited June 5, 2008)
23
Press Release, Children’s Rights, Settlement of Class-Action Lawsuit Mandates
Sweeping Reform of Foster Care in Atlanta, Georgia (July 5, 2005),
http://www.childrensrights.org/pdfs/press_releases/07-05-05.pdf (last visited June 5, 2008).
24
Press Release, Children’s Rights, Inc., In First Ruling of its Kind in Nation, Federal
Judge in Georgia Rules Abused and Neglected Children Have Right to an Attorney While in
State Custody (Feb. 8, 2005), at http://www.childrensrights.org/pdfs/press_releases/02-08-05.pdf
53
“groundbreaking settlement agreement” in the case, adding that the agreement
“appears to be the first of its kind nationally, and we expect that children
throughout Georgia and perhaps elsewhere in the country will benefit.”25 The
accomplishments of Children’s Rights in this case were discussed in its annual
report: “In 2006–2007, we took the fight for America’s abused and neglected
children” to eight states.26 Georgia is listed in the report as one of the eight states
where Children’s Rights took “the fight.”27
The point is not that Ms. Lowry and her organization don’t have every
reason to boast about their role in this case. The point is that their work in this case
is something that is in their interest to boast about. It is not something that requires
more than the $495 per hour that Ms. Lowry received to attract her and her
organization to this case. This area of the law is the sea in which they sail and class
action lawsuits are their chosen vessel. It is what they do. They submitted
(last visited June 5, 2008).
25
Press Release, Children’s Rights, Inc., Landmark Settlement Guarantees the Right to
Legal Counsel for Abused and Neglected Children in Atlanta, Georgia (Feb. 13, 2006), at
http://www.childrensrights.org/pdfs/press_releases/3197_001.pdf (last visited June 5, 2008).
26
Children’s Rights, Inc., Annual Report, at 4 (2006–2007),
http://www.childrensrights.org/pdfs/Annual%20Report%202006-2007.pdf (last visited June 5,
2008).
27
Children’s Rights, Inc., Annual Report, at 5 (2006–2007),
http://www.childrensrights.org/pdfs/Annual%20Report%202006-2007.pdf (last visited June 5,
2008).
54
three-fourths of the billable hours in this lawsuit. Except for the relatively
insignificant travel hours, they were paid at the high hourly rates they demanded.
To suggest that the prospect of a huge monetary bonus was needed to attract them
to this lawsuit is not only absurd, but it also demeans the dedication of Ms. Lowery
and her organization. Cf. Delaware Valley I, 478 U.S. at 567, 106 S. Ct. at 3099
(“Clearly, Delaware Valley was able to obtain counsel without any promise of
reward for extraordinary performance.”).
The multi-million dollar enhancement, over and beyond the full lodestar sum
that Ms. Lowery and her organization received, amounts to an involuntary, federal
court ordered contribution from the taxpayers of Georgia to a non-profit
organization. The perverse irony of the seven figure, court ordered gratuity in this
case is that it reduces the amount of state funds available to care for what
Children’s Rights itself has described as some of Georgia’s “most vulnerable
citizens,” the very group that the organization is dedicated to protecting.
For all of the reasons we have discussed, were we free to decide the issue we
would readily conclude that the district court’s award of a $4,500,000 enhancement
to the lodestar amount in this case is an abuse of discretion, because it is based on
an erroneous view of the law and reflects a clear error of judgment.
55
C.
Unfortunately, under the prior panel precedent rule we are not free to decide
the enhancement issue, but must instead follow this Court’s earlier decisions in
NAACP v. City of Evergreen, 812 F.2d 1332 (11th Cir. 1987), and Norman v.
Housing Authority of Montgomery, 836 F.2d 1292 (11th Cir. 1988). Both of those
decisions were issued after the Supreme Court last spoke on the subject of
enhancements for quality of representation and superior results, which was in the
Delaware Valley I case.
In the NAACP case, the plaintiffs’ attorneys had requested a 50 percent
enhancement of the lodestar amount, which was based, in part, on “the assertion
that the relief obtained was of great benefit to the black citizens of Evergreen and
represented exceptional success.” NAACP, 812 F.2d at 1336. After the district
court denied the request, the plaintiffs appealed and this Court vacated and
remanded, in part because “[t]he district court’s opinion does not address at all the
last factor that the NAACP argued justified enhancement—that the relief obtained
was of great benefit to the black citizens of Evergreen and represented exceptional
success.” Id. In remanding, the Court instructed:
[T]he district court should make findings with regard to each of the
grounds put forward by the NAACP as warranting an enhancement
and relate those findings to its ultimate determination of the issue. We
note, however, in remanding, that the Supreme Court has held that the
56
fact the results obtained would be of far-reaching significance to a
large number of people usually is not grounds for enhancement,
because the results obtained, as one of the Johnson factors, normally
will be subsumed in the calculation of a reasonable fee and, therefore,
usually should not provide an independent basis for increasing the fee
award. Blum v. Stenson, 465 U.S. 886, 900, 104 S. Ct. 1541, 1549–50
(1984). The award may be enhanced, however, “in some cases of
exceptional success.” Id. at 897, 104 S. Ct. at 1548 (quoting Hensley,
461 U.S. at 435, 103 S. Ct. at 1940). The district court’s
reconsideration of the appropriateness of an enhancement based on
this factor should be made in light of these principles.FN6
FN6. The basic assumption of Blum, however, is that the
district court will have taken factors such as the benefit
obtained into account in its initial determination of the
reasonable fee. There is no indication that the district
court has done so in this case. In fact, it appears that the
district court limited its consideration of the results
obtained to its determination that the prevailing and
unsuccessful claims were separable. On remand, the
district court should take into account all relevant
considerations put forth by the NAACP in determining
the effect of the results obtained, as well as the effect of
the other Johnson factors, on its initial calculation of a
reasonable attorney’s fee. It should then consider
whether the NAACP has shown grounds for an
enhancement of that initial calculation.
Norman, 812 F.2d at 1337 & n.6 (citations omitted).
In Norman the attorneys for the prevailing civil rights plaintiffs had
requested a substantial enhancement of the lodestar amount based in part on the
“quality of representation provided.” Norman, 836 F.2d at 1297. In denying that
request the district court found “that substantial results were obtained even if the
57
lawsuit was unnecessary to obtain them,” but that an enhancement was
inappropriate “because of the possibility of duplication of efforts and the
possibility of improperly charged hours.” Id. at 1297–98. This Court reversed the
denial of the enhancement because “the wrong standards were applied.” Id. at
1306.
In doing so, the Norman Court explained that “[i]f the results obtained were
exceptional, then some enhancement of the lodestar might be called for.” Id. at
1302 (citing Delaware Valley I, 478 U.S. at 564–65, 106 S. Ct. at 3098). It also
stated that “[e]xceptional results are results that are out of the ordinary, unusual or
rare,” not those that are expected, because “[t]he law is usually faithful to its
teachings, and so an outcome that is not unexpected in the context of extant
substantive law will not ordinarily be exceptional.” Id. These were among the
remand instructions in the Norman case:
Any enhancement begins with a finding that the results were
exceptional; the district court has also failed to address this issue with
reference to the extant substantive law. Accordingly, we remand for
reconsideration. In adjusting the lodestar, as has been noted earlier,
the court must take into account the significance of the results
obtained in relation to those sought. It is at this point that the court
may wish to make adjustments for unsuccessful theories and dismissal
of the case as to some parties.
Even if the court found the results obtained to be exceptional,
no enhancement for these results would be justified unless the court
also finds that class counsel’s representation was superior to that
58
which would have been expected considering the rates requested.
Blum, 465 U.S. at 899, 104 S. Ct. at 1549.
Norman, 836 F.2d at 1306; accord Ass’n of Disabled Ams. v. Neptune Designs,
Inc., 469 F.3d 1357, 1359 (11th Cir. 2006) (dicta) (“The court may then adjust the
lodestar to reach a more appropriate attorney’s fee, based on a variety of factors,
including the degree of the plaintiff’s success in the suit.” (footnote omitted));
Villano v. City of Boynton Beach, 254 F.3d 1302, 1308 (11th Cir. 2001) (dicta)
(“If the court determines that the result obtained was an excellent result, then the
award of fees ‘will encompass all hours reasonably expended on the litigation, and
indeed in some cases of exceptional success an enhanced award may be justified.’”
(citation omitted)); Duckworth v. Whisenant, 97 F.3d 1393, 1399 (11th Cir. 1996)
(dicta) (“After determining the lodestar amount as above, the court is entitled to
adjust the amount of final fees awarded in light of the results obtained through the
litigation.”).
The NAACP and Norman decisions both vacated district court orders
denying enhancements for superior results and issued remand instructions. Those
instructions, especially the ones in Norman, constitute a holding that superior
results coupled with superior performance can be the basis for an enhancement of
the lodestar amount. For the reasons we have already explained at length, we are
59
convinced that holding is wrong and conflicts with relevant Supreme Court
decisions.
Nonetheless, as a later panel we are bound to follow it. Hurth v. Mitchem,
400 F.3d 857, 862 (11th Cir. 2005) (“[W]e are not permitted to reach a result
contrary to a prior panel’s decision merely because we are convinced it is
wrong . . . .”); Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“The
idea of an exception to the prior panel precedent rule where a subsequent panel is
convinced the prior one reached the wrong result—for whatever reason—is also
inconsistent with a number of decisions in which panels of this Court have
obediently followed prior panel precedents they were convinced were wrong.”); id.
at 1304 (“In summary, the parties’ alternative argument boils down to the position
that [a decision of this Court] incorrectly interpreted and applied [a Supreme Court
decision] . . . . The prior panel precedent rule clearly forecloses their position.”);
Wascura v. Carver, 169 F.3d 683, 687 (11th Cir. 1999) (“Wascura argues that the
reasoning of [a decision of this Court] is unclear and inadequate to support its
holding. We have no occasion to pass on that criticism, because we are bound by
[that] decision regardless of whether we agree with it.”); United States v. Steele,
147 F.3d 1316, 1318 (11th Cir. 1998) (en banc) (“Under our prior precedent rule, a
panel cannot overrule a prior one’s holding even though convinced it is wrong.”).
60
Our colleague, Judge Wilson, is of the opinion that this Court’s decisions in
NAACP and Norman are correct, that enhancements of the lodestar amount can and
should be allowed for the quality of representation and the exceptional nature of
the results obtained. While we respect those views, we are unpersuaded by them.28
The concurring opinion essentially adopts the position of the Sixth Circuit in
Geier v. Sundquist, 372 F.3d 784 (6th Cir. 2004), that the Supreme Court’s holding
about performance enhancements in Delaware Valley I is nothing but dicta. Id. at
794.29 That proposition is a matter of necessity for those who defend
28
Both Judges Wilson and Hill have authored concurring opinions in this case. See n.3,
supra. References in this opinion to “the concurring opinion” are to Judge Wilson’s.
29
The concurring opinion cites six additional cases from other circuits in support of its
position that the district court may enhance the lodestar based on the quality of the representation
and superior results: the Second Circuit’s decision in Quaratino v. Tiffany & Co., 166 F.3d 422
(2d Cir. 1999), the Fourth Circuit’s decision in Hyatt v. Apfel, 195 F.3d 188 (4th Cir. 1999), the
Fifth Circuit’s decision in Shipes v. Trinity Indus., 987 F.2d 311 (5th Cir. 1993), the Ninth
Circuit’s decision in Van Gerwen v. Guarantee Mutual Life Co., 214 F.3d 1041 (9th Cir. 2000),
the Eighth Circuit’s in Forshee v. Waterloo Industries, Inc., 178 F.3d 527 (8th Cir. 1999), and the
Tenth Circuit’s Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221 (10th Cir.
1997). There are three problems with reliance on those decisions.
For one thing, none of them actually holds that the lodestar may be enhanced based on the
quality of representation. Indeed the Shipes decision rejected the district court’s enhancement on
that ground, holding that “[e]ven though Shipes’s counsel presented extensive statistical data
with competence, nothing less should be expected of counsel; consequently, this factor alone
does not support enhancement.” Shipes, 987 F.2d at 321.
Because the Quaratino case did not even involve, directly or indirectly, an enhancement
of any type, Quaratino, 166 F.3d at 424, anything that opinion says about enhancements is pure
dicta. Likewise, the issue before the court in Van Gerwen was “whether—and if so, how—a
district court may permissibly reduce an attorney’s fees award under federal fee-shifting statutes
to reflect poor quality of representation.” Van Gerwen, 214 F.3d at 1044. Because it was a fee
reduction case, not an enhancement case, anything the Van Gerwen opinion says about
61
enhancements based on superior performance and the results it produces, because
what the Court instructed us in the Delaware Valley I decision is that “it is
unnecessary to enhance the fee for superior performance in order to serve the
statutory purpose of enabling plaintiffs to secure legal assistance.” Delaware
Valley I, 478 U.S. at 566, 106 S. Ct. at 3098. We should not worry about that
instruction, Geier and the concurring opinion assure us, because it was just a
summary of the Court’s earlier Blum decision, and Blum did not say that. In other
words, the Supreme Court in Delaware Valley I mischaracterized its own earlier
decision in Blum. That view is wrong for two reasons. The first one, of course, is
that the Supreme Court knows its decisions better than we do, and we are not free
to disregard the Court’s instructions because we think they may be based on a
misreading of its own prior decisions.
enhancements is also dicta. Finally, in Forshee, the court of appals reversed the district court’s
fee enhancement because it was based on the contingent nature of the case. Forshee, 178 F.3d at
532. There was no evidence supporting an enhancement for superior representation or results.
The court said: “the case was not unusually difficult or complex to prepare and try, the result
while favorable to Forshee was not exceptional, Forshee gave only an impermissible reason for
enhancement, and the district court made no ‘detailed findings’ that would justify an enhanced
fee award.” Id. As with the other two cases, anything the Forshee court said about superior
representation or results is dicta.
Finally, none of the opinions from other circuits in those six cases engages in an extended
discussion of the Supreme Court’s Delaware Valley I and Dague opinions, nor do they confront
the Supreme Court’s reasoning in those two decisions, reasoning that is inconsistent with
enhancements for superior representation and results.
62
Secondly, Geier and the concurring opinion are also wrong about the context
in which the Supreme Court told us in Delaware Valley I that enhancements for
superior performance and results are unnecessary. That key statement is not
confined to a recitation of the Blum case. It is part of an additional discussion that
follows one in which the Court had stated that the federal fee-shifting statutes
“were not designed as a form of economic relief to improve the financial lot of
attorneys.” Delaware Valley I, 478 U.S. at 565, 106 S. Ct. at 3098. Instead, the
Court explained, the sole purpose of those statutes is to enable “private parties to
obtain legal help in seeking redress for injuries resulting from the actual or
threatened violation of specific federal laws.” Id. That purpose, the Court
emphasized, is satisfied if plaintiffs “find it possible to engage a lawyer based on
the statutory assurance that he will be paid a ‘reasonable fee.’” Id.
Immediately after explaining that, in the next paragraph of the Delaware
Valley I opinion, the Supreme Court made the statements that the concurring
opinion and Geier would have us disregard. That paragraph, in its entirety, reads as
follows:
Moreover, when an attorney first accepts a case and agrees to
represent the client, he obligates himself to perform to the best of his
ability and to produce the best possible results commensurate with his
skill and his client’s interests. Calculating the fee award in a manner
that accounts for these factors, either in determining the reasonable
number of hours expended on the litigation or in setting the
63
reasonable hourly rate, thus adequately compensates the attorney, and
leaves very little room for enhancing the award based on his
post-engagement performance. In short, the lodestar figure includes
most, if not all, of the relevant factors constituting a “reasonable”
attorney’s fee, and it is unnecessary to enhance the fee for superior
performance in order to serve the statutory purpose of enabling
plaintiffs to secure legal assistance.
Id. at 565–66, 106 S. Ct. at 3098 (emphasis added).
That statement is not dicta. It might have been if the Court had somehow
affirmed the fee enhancement for superior performance in Delaware Valley I, but
the Court did not do that. Instead, the Court reversed the fee award because of the
enhancement, stating in the very next sentence after the quoted paragraph: “With
this teaching from our prior cases in mind, we sustain the Commonwealth’s
contention that the lower courts erred in increasing the fee award to Delaware
Valley in Phase V based on the ‘superior quality’ of counsel’s performance.” Id. at
566, 106 S. Ct. at 3099.30 The teaching the Supreme Court had in mind included
the lesson that it was unnecessary to enhance fees for superior performance. Any
additional statements about the particular evidence in that case that come later in
30
As we explained earlier in this opinion, the Court carried over for reargument the next
term the issue of whether an enhancement for contingency risk was proper. See Delaware Valley
I, 478 U.S. at 568, 106 S. Ct. at 3100. But the Court did reverse the rest of the enhancement,
including the increase for superior performance and exceptional results. Id. (“The judgment
below is therefore affirmed insofar as it upheld the award of attorney’s fees for the work done in
Phases II and IX and, except for the multiplier for risk, is otherwise reversed.” (emphasis
added)).
64
the opinion are, at most, additional or alternative holdings. See id. at 566, 106 S.
Ct. at 3099 (“Furthermore, we are unpersuaded that . . .” (emphasis added)).
Even if the first holding stated in the Delaware Valley I opinion, which is
that fee enhancements for superior performance and exceptional results are
unnecessary, is viewed as one of two alternative holdings, we are still required to
follow it. See Massachusetts v. United States, 333 U.S. 611, 623, 68 S. Ct. 747,
754 (1948); Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 340, 48
S. Ct. 194, 196 (1928) (“It does not make a reason given for a conclusion in a case
obiter dictum, because it is only one of two reasons for the same conclusion.”);
Johnson v. DeSoto County Bd. Comm’rs, 72 F.3d 1556, 1562 (11th Cir. 1996)
(“[W]e are bound by alternative holdings”); McClellan v. Miss. Power & Light
Co., 545 F.2d 919, 925 n.21 (5th Cir. 1977) (“It has long been settled that all
alternative rationales for a given result have precedential value.”). The concurring
opinion, the Sixth Circuit’s decision in Geier, and our decisions in NAACP and
Norman all disregard the teaching that the Supreme Court used as a basis for its
decision in Delaware Valley I. They all contradict the Supreme Court’s holding
that fee enhancements for superior performance and results are unnecessary. We
would not, if we were not bound by the prior precedent rule to do so.
65
The opinions concluding that enhancements for those reasons are appropriate
also fail to mention, much less grapple with, the part of the Dague decision that
discusses enhancements related to the merits of the federal claims that have been
vindicated in the lawsuit. As we have already pointed out, see supra at 34–35, in
the course of rejecting any enhancement to fee awards based on contingency, the
Supreme Court unequivocally concluded in Dague that enhancements should not
be granted based on the legal and factual merits of the claim or the difficulty of
establishing those merits. Dague, 505 U.S. at 562–63, 112 S. Ct. at 2641. It is
logically impossible to reconcile those clear instructions from Dague with the
position that enhancements can be granted based on the superior performance of
counsel in establishing the legal and factual merits. Which may be why Geier,
NAACP, Norman, and the concurring opinion make no attempt to do so.31
31
On a related point, the concurring opinion’s reliance on our own decision in Villano, is
misplaced. The Villano case had nothing to do with fee enhancements. Instead, it is a case in
which the district court actually reduced the lodestar amount because the plaintiff did not prevail
on all claims or against all of the defendants, and did not recover all of the damages he was
seeking. Villano, 254 F.3d at 1304. The unremarkable holding of Villano is that before a court
can reduce the lodestar amount for limited success it must consider not just the benefit the
plaintiff obtained for himself measured in the damage award but also the public benefit of
vindicating federal rights against a governmental entity. Id. at 1306–07. Of course.
But to say, as Villano does, that a fee award should not be reduced below the lodestar
amount for partial success without considering all aspects of the success is one thing. To say, as
the concurring opinion in this case does, that the lodestar should be increased for success if the
public gained some benefit from having federal rights vindicated is an entirely different thing.
Indeed, if public benefit through vindication of federal rights was enough to justify an
enhancement of the lodestar amount, there would be an enhancement in every single fee case.
66
Despite our disagreement with the concurring opinion about the correctness
of our NAACP and Norman decisions, we do agree that those decisions control the
outcome of this case. They do not foreclose us from vacating the district court’s
judgment based on its improper consideration of the contingency nature of the
award, the advancing of expenses, and the delay in payment of fees. However, our
reading of the district court’s opinion leaves us convinced that it would be
pointless to remand to that court with instructions that it reconsider whether to give
an enhancement, or the amount of one, free of those improper considerations. The
district court was so obviously enamored with the performance of plaintiffs’
counsel and with the result that they achieved, and so determined to reward them
for it, that we have no doubt the court would simply reinstate the enhancement. So
long as our NAACP and Norman decisions stand, the district court can, and would
again on remand, reach the same result that we have before us and rest it on the
basis of quality of representation and superior results. All that a remand would
achieve is more delay and the generation of more billable hours.
There can be no fee award under § 1988 and its statutory cousins unless plaintiff’s counsel has
obtained a judgment establishing that some federal statutory or constitutional right has been
violated. Every judgment that will support a fee award will have benefitted the public by
vindicating federal rights and serving as a deterrence to future violations. Therefore, under the
concurring opinion's logic, every fee award should be increased as a reward for success and on
public benefit grounds. That cannot be.
67
Of course, this Court sitting en banc, or the Supreme Court, can overrule any
prior decisions of this Court. Unless and until this Court does overrule NAACP
and Norman, we are constrained to let stand the $4,500,000 enhancement to the
lodestar amount that is included in the district court’s judgment in this case.
VII.
AFFIRMED.
68
WILSON, Circuit Judge, specially concurring:
I agree with the decision to uphold the fee award in this case. I do not,
however, share my colleague Judge Carnes’ view that the district court’s decision
and our own prior precedents in this area are inconsistent with the teachings of the
Supreme Court. The Court has not held that quality of representation and
exceptional results can never be grounds for an upward adjustment of the lodestar
figure. To the contrary, the Court has allowed for the possibility of an
enhancement based on these factors where, as here, specific record evidence
indicates that the lodestar amount is insufficient to provide a reasonable fee.
Accordingly, I concur in the result only.
I.
In Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984),
the Supreme Court considered whether, and under what circumstances, quality of
representation and exceptional results can support an enhancement of the lodestar.
The Court noted that the quality of an attorney’s representation “generally is
reflected in the reasonable hourly rate.” Id. at 899, 104 S. Ct. at 1549. However,
the Court stated that this factor may justify an upward adjustment “in the rare case
where the fee applicant offers specific evidence to show that the quality of service
rendered was superior to that one reasonably should expect in light of the hourly
69
rates charged and that the success was ‘exceptional.’” Id. (quoting Hensley v.
Eckerhart, 461 U.S. 424, 435, 103 S. Ct. 1933, 1940, 76 L. Ed. 2d 40 (1983)).
Because the attorneys in Blum offered no such evidence, the Court concluded that
the district court’s reliance on quality of representation as grounds for an
enhancement amounted to double counting. Id. The Court indicated, however, that
the outcome would have been different had there been specific evidence showing
that an enhancement was necessary to reflect counsel’s superior performance. See
id. at 900, 104 S. Ct. at 1549 (“Absent specific evidence to the contrary, we cannot
say that [the] rates . . . for these three attorneys do not fully reflect the quality of
their representation.”).
With respect to the results obtained, the Court said that this factor likewise
will “generally . . . be subsumed within other factors used to calculate a reasonable
fee,” and therefore “it normally should not provide an independent basis for
increasing the fee award.” Id. at 900, 104 S. Ct. at 1549-50. The Court did not
hold, however, that consideration of the results obtained is categorically
impermissible. In fact, the Court took the opposite position, reiterating its prior
statement from Hensley: “[W]here a plaintiff has obtained excellent results, his
attorney should recover a fully compensatory fee. Normally this will encompass all
hours reasonably expended on the litigation, and indeed in some cases of
70
exceptional success an enhancement award may be justified.” Blum, 465 U.S. at
901, 104 S. Ct. at 1550 (internal quotation marks omitted) (quoting Hensley, 461
U.S. at 435, 103 S. Ct. at 1940). Again, the Court indicated that the determinative
consideration is whether the record contains evidence “show[ing] that the benefit
achieved requires an upward adjustment to the fee.” Id. at 900, 104 S. Ct. at 1550.
Blum thus establishes that enhancements for quality of representation and
exceptional results, while not warranted in most cases, are permissible where
supported by specific evidence. Therefore, to accept Judge Carnes’ view that these
factors can never be grounds for an enhancement, one would have to conclude that
the Supreme Court has repudiated that aspect of Blum. I find little support for that
proposition. Judge Carnes’ opinion cites language in Pennsylvania v. Delaware
Valley Citizens’ Council for Clean Air (Delaware Valley I), 478 U.S. 546, 106 S.
Ct. 3088, 92 L. Ed. 2d 439 (1986), that, when read in isolation, arguably
characterizes Blum as having established a categorical rule against consideration of
the quality of representation and the results obtained. See id. at 565, 106 S. Ct. at
3098 (“[W]e specifically held in Blum that . . . the ‘quality of representation,’ and
the ‘results obtained’ from the litigation are presumably fully reflected in the
lodestar amount, and thus cannot serve as independent bases for increasing the
basic fee award.” (quoting Blum, 465 U.S. at 898-900, 104 S. Ct. at 1548-1550)).
71
Judge Carnes’ reliance on this passage is misplaced for a number of reasons. As an
initial matter, the statement is internally inconsistent: while providing that the
named factors “cannot serve as independent bases for increasing the basic fee
award,” it also indicates that the factors are only “presumably” reflected in the
lodestar amount. Thus, even standing alone, the statement provides uncertain
support for Judge Carnes’ opinion’s conclusion.
More significantly, the statement is not a holding of the Court. It is merely
part of a discussion summarizing Blum and citing the case with approval. A review
of the discussion as a whole makes clear that the Court was not purporting to alter
Blum in any way. Indeed, in the sentence immediately following the language at
issue, the Court restated Blum’s holding that upward adjustments are proper “in
certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the
record and detailed findings by the lower courts.” Id. (quoting Blum, 465 U.S. at
898-901, 104 S. Ct. at 1548-50). The Court’s references to “specific evidence” are
quoted from the portions of Blum addressing the showing necessary for an
enhancement based on quality of representation.1 Read in this context, the
1
See Blum, 465 U.S. at 899, 104 S. Ct. at 1549 (stating that quality of representation
“may justify an upward adjustment only in the rare case where the fee applicant offers specific
evidence to show that the quality of service rendered was superior to that one reasonably should
expect in light of the hourly rates charged and that the success was ‘exceptional’” (quoting
Hensley, 461 U.S. at 435, 103 S. Ct. at 1940)); id. at 900, 104 S. Ct. at 1549 (“Absent specific
evidence to the contrary, we cannot say that [the] rates . . . for these three attorneys do not fully
72
language cited by Judge Carnes’ opinion cannot reasonably be characterized as a
departure from Blum. Rather, it must be construed as a reaffirmation of Blum’s
teachings concerning the “quality of representation” and “results obtained” factors:
namely, that while these considerations are presumably reflected in the lodestar
figure, and cannot serve as grounds for an enhancement where that is the case, the
presumption may be rebutted by specific evidence.
The portions of Delaware Valley I setting forth the Court’s holding confirm
this interpretation. In concluding that the enhancement awarded by the district
court was improper, the Court discussed the “quality of representation” factor in
non-categorical terms consistent with Blum: “Because considerations concerning
the quality of a prevailing party’s counsel’s representation normally are reflected in
the reasonable hourly rate, the overall quality of performance ordinarily should not
be used to adjust the lodestar, thus removing any danger of ‘double counting.’”
Delaware Valley I, 478 U.S. at 566, 106 S. Ct. at 3099 (emphasis added).
Moreover, the Court conducted a case-specific analysis, explaining how the record
before it failed to support an upward adjustment. See, e.g., id. at 567, 106 S. Ct. at
3099 (noting that nearly one-third of hours reasonably spent on relevant phase of
case were not compensated at hourly rate for most difficult work).
reflect the quality of their representation.”).
73
It was this lack of evidentiary support—rather than a blanket rule against
consideration of the quality of representation or the results obtained—that
compelled reversal, as the Court repeatedly made clear. As to the attorneys’
performance, the Court stated: “[V]iewing the evidence submitted by Delaware
Valley to support its petition for attorney’s fees, there is no indication as to why the
lodestar did not provide a reasonable fee award reflecting the quality of
representation . . . .” Id. The same conclusion applied to the results obtained:
“Delaware Valley presented no specific evidence as to what made the results it
obtained . . . so ‘outstanding,’ nor did it provide any indication that the lodestar
figure for this portion of the case was far below awards made in similar cases
where the court found equally superior quality of performance.” Id. at 567-68, 106
S. Ct. at 3099. Finally, the Court deemed it significant that neither of the lower
courts “made detailed findings as to why the lodestar amount was unreasonable,
and in particular, as to why the quality of representation was not reflected in the
product of the reasonable number of hours times the reasonable hourly rate.” Id. at
568, 106 S. Ct. at 3099.
The Court left little doubt that these considerations were critical to its
disposition of the case. Using language virtually identical to that of Blum, the
Court concluded: “In the absence of such evidence and such findings, we find no
74
reason to increase the fee award . . . for the quality of representation.” Id. at 568,
106 S. Ct. at 3099-100 (emphasis added). Cf. Blum, 465 U.S. at 900, 104 S. Ct. at
1549 (“Absent specific evidence to the contrary, we cannot say that [the] rates . . .
for these three attorneys do not fully reflect the quality of their representation.”).
These statements undermine any suggestion that Delaware Valley I
precludes courts from ever considering the quality of representation and the results
obtained as grounds for enhancing the lodestar figure. Such an interpretation
cannot be squared with the Court’s repeated descriptions of these factors as
presumptively, but not absolutely, reflected in the lodestar figure. Moreover, had
the Court intended to establish such a rule, its entire discussion concerning the
deficiencies in the record and the lack of findings by the lower courts would have
been unnecessary.
Judge Carnes’ opinion argues that we may ignore the Court’s statements
regarding the record because they are merely alternative holdings. However, that
view fails to account for the statement that immediately precedes the Court’s record
analysis: “Because considerations concerning the quality of a prevailing party’s
counsel’s representation normally are reflected in the reasonable hourly rate, the
overall quality of performance ordinarily should not be used to adjust the lodestar .
. . .” 478 U.S. at 566, 106 S. Ct. at 3099 (emphasis added). At no point did the
75
Court suggest that this unambiguous statement of the governing law (a statement
that Judge Carnes’ opinion does not address) was somehow an alternative basis for
its decision. Moreover, as discussed, the Court repeatedly made clear that the
evidentiary deficiencies and lack of findings were essential to the outcome in the
case. See, e.g., id. at 567, 106 S. Ct. at 3099 (“In sum, viewing the evidence
submitted by Delaware Valley to support its petition for attorney’s fees, there is no
indication as to why the lodestar did not provide a reasonable fee award reflecting
the quality of representation provided during Phase V of the litigation.”); id. at 568,
106 S. Ct. at 3099-100 (“In the absence of such evidence and such findings, we
find no reason to increase the fee award . . . for the quality of representation.”).
There simply is no basis for concluding, as Judge Carnes’ opinion does, that we are
free to disregard virtually all of Part III.B of the Court’s opinion.
Judge Carnes’ opinion also relies on language in which the Court described
enhancements for superior performance as “unnecessary” for purposes of enabling
plaintiffs to secure legal assistance. See id. at 566, 106 S. Ct. at 3098. In the same
discussion, however, the Court reiterated that such enhancements are not
categorically barred, despite being disfavored as a general matter. In explaining
the reasons for the “strong presumption” that the lodestar figure represents a
reasonable fee, see id. at 565, 106 S. Ct. at 3098, the Court noted that an attorney
76
who accepts a case “obligates himself to perform to the best of his ability and to
produce the best possible results commensurate with his skill and his client’s
interests.” Id. Therefore, the Court said, “[c]alculating the fee award in a manner
that accounts for these factors, either in determining the reasonable number of
hours expended on the litigation or in setting the reasonable hourly rate, . . .
adequately compensates the attorney, and leaves very little room for enhancing the
award based on his post-engagement performance.” Id. at 565-66, 106 S. Ct. at
3098 (emphasis added). The Court’s subsequent description of performance-based
enhancements as “unnecessary” must be read in light of that statement, which
makes clear that such adjustments are permissible under narrow circumstances.
Given that instruction, as well as the Court’s numerous other statements
articulating a non-categorical approach, the language cited by Judge Carnes’
opinion cannot be read to preclude enhancements for performance in all cases.2
2
Judge Carnes’opinion also asserts that enhancements for superior performance cannot
be reconciled with City of Burlington v. Dague, 505 U.S. 557, 112 S. Ct. 2638, 120 L. Ed. 2d 449
(1992), in which the Court held that enhancements for contingency are not permitted. As Judge
Carnes’ opinion notes, the Dague Court defined an attorney’s contingent risk in a particular case
as the product of “(1) the legal and factual merits of the claim, and (2) the difficulty of
establishing those merits.” Id. at 562, 112 S. Ct. at 2641. However, Dague is inapposite
because, unlike an attorney’s level of risk, the quality of his or her representation cannot be
defined solely by reference to these two factors. Two attorneys could bring identical claims, the
merits of which are equally difficult to establish. Even if both attorneys prevail, it does not
follow that their respective performances were necessarily equal in quality. In any given case, a
host of factors beyond those relating specifically to the merits of a claim are pertinent to
assessing the quality of an attorney’s representation. Nothing in Dague precludes courts from
considering these additional factors as possible grounds for an enhancement.
77
Accordingly, I cannot accept the conclusion that our decisions in NAACP v.
City of Evergreen, 812 F.2d 1332 (11th Cir. 1987), and Norman v. Housing
Authority of Montgomery, 836 F.2d 1292 (11th Cir. 1988), were wrongly decided.
In NAACP, the district court denied a request for an enhancement but failed to
make findings with regard to one of the factors relied upon as a justification: “the
assertion that the relief obtained was of great benefit to the black citizens of
Evergreen and represented exceptional success.” 812 F.2d at 1336. While
stressing that the results obtained “normally will be subsumed in the calculation of
a reasonable fee,” id. at 1337, we noted that “[t]he award may be enhanced . . . ‘in
some cases of exceptional success,’” id. (quoting Blum, 465 U.S. at 897, 104 S. Ct.
at 1548). We therefore remanded for reconsideration in light of those principles.
Id. Similarly, in Norman, the district court failed to make a finding as to whether
the results obtained were exceptional. 836 F.2d at 1306. In remanding, we were
careful to note that even a finding of exceptional results would not support an
enhancement unless the court also found that counsel’s representation “was
superior to that which would have been expected considering the rates requested.”
Id. (citing Blum, 465 U.S. at 899, 104 S. Ct. at 1549). NAACP and Norman thus
78
are fully consistent with the principles set forth in Hensley, Blum, and Delaware
Valley I.3
Other circuits share our understanding of the Court’s teachings. See, e.g.,
Geier v. Sundquist, 372 F.3d 784, 794-95 (6th Cir. 2004) (concluding that
Delaware Valley I permits enhancements based on quality of representation and
results obtained in rare and exceptional cases); Van Gerwen v. Guarantee Mut. Life
Co., 214 F.3d 1041, 1046 (9th Cir. 2000) (stating that upward adjustment for
quality of representation “is justified only in the rare case where there is specific
evidence that the quality of service was superior in light of the hourly rates charged
and that the success was exceptional”); Hyatt v. Apfel, 195 F.3d 188, 192 (4th Cir.
1999) (affirming enhancement for results obtained); Forshee v. Waterloo Indus.,
Inc., 178 F.3d 527, 532 (8th Cir. 1999) (stating that, to justify enhancement for
3
Since NAACP and Norman were decided, we have repeatedly reiterated their
understanding of the Court’s teachings. See Ass’n of Disabled Ams. v. Neptune Designs, Inc.,
469 F.3d 1357, 1359 (11th Cir. 2006) (per curiam) (“The court may then adjust the lodestar to
reach a more appropriate attorney’s fee, based on a variety of factors, including the degree of the
plaintiff’s success in the suit.”); Villano v. City of Boynton Beach, 254 F.3d 1302, 1308 (11th
Cir. 2001) (“If the court determines that the result obtained was an excellent result, then the
award of fees ‘will encompass all hours reasonably expended on the litigation, and indeed in
some cases of exceptional success an enhanced award may be justified.’” (quoting Hensley, 461
U.S. at 435, 103 S. Ct. at 1940)); Duckworth v. Whisenant, 97 F.3d 1393, 1396 (11th Cir. 1996)
(per curiam order incorporating district court decision into opinion) (“After determining the
lodestar, the court may adjust the amount depending upon a number of factors, including the
quality of the results and representation of the litigation.”); Loranger v. Stierheim, 10 F.3d 776,
781 (11th Cir. 1994) (per curiam) (“[The] ‘lodestar’ may then be adjusted for the results
obtained.”).
79
outstanding service and results, applicant “must establish that the quality of service
rendered and the results obtained were superior to what one reasonably should
expect in light of the hourly rates charged and the number of hours expended”
(internal quotation marks omitted)); Quaratino v. Tiffany & Co., 166 F.3d 422, 425
(2d Cir. 1999) (“The lodestar may be adjusted based on several factors, including
in particular the results obtained . . . .” (internal quotation marks and citation
omitted)); Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221,
1233 n.8 (10th Cir. 1997) (“The lodestar figure may be adjusted to suit the
particular circumstances of the case, especially where the degree of success
achieved is exceptional.”); Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir.
1993) (noting that upward adjustments based on quality of representation and
results obtained are proper where supported by specific evidence on record and
detailed findings by lower courts). In each of these cases, the court recognized (at
least implicitly) that Delaware Valley I did not fundamentally alter the controlling
law regarding enhancements for outstanding performance and results. Judge
Carnes’ opinion thus conflicts not only with two decades of our own jurisprudence,
but also with the decisions of numerous other courts.
80
II.
In this case, the district court made detailed findings as to why the lodestar
figure did not fully reflect the quality of representation and the exceptional results
achieved. As to the former, the court found that “the quality of service rendered by
class counsel, including their extraordinary commitment of capital resources, was
far superior to what consumers of legal services in the legal marketplace in Atlanta
could reasonably expect to receive for the rates used in the lodestar calculation.”
Kenny A. ex rel. Winn v. Perdue (Kenny A. III), 454 F. Supp. 2d 1260, 1288 (N.D.
Ga. 2006). In support of that conclusion, the court cited affidavits submitted by
four attorneys with extensive experience in the Atlanta legal market, particularly in
the area of class action litigation. See id. at 1290. These attorneys each stated that
the hourly rates claimed by counsel would not provide a fee sufficient to reflect the
value of the services performed. For example, Henry D. Fellows, Jr. testified:
In the current Atlanta market for legal services, the Standard Hourly
Rates specified in the Declarations of Marcia Robinson Lowry and
Jeffrey O. Bramlett would be generally inadequate and insufficient to
induce lawyers of comparable skill, judgment, professional reputation
and experience to perform the necessary services to prosecute a case of
this magnitude on terms where the lawyers are not paid on an ongoing
basis as the work is being performed, are required to advance case
expenses of $1.7 million over a three year period with no ongoing
reimbursement, and the lawyers’ ability to recover a fee and expense
reimbursement are completely contingent on the outcome of the case.
81
[Fellows Decl., R32:495:Ex.G:¶7; see also Knowles Decl., R32:495:Ex.D:¶11;
Chandler Decl., R32:495:Ex.F:¶7; Rawls Decl., R32:495:Ex.H:¶7.]
In the view of three of these attorneys, a 1.5-2 multiplier was necessary to bring
the fee award into line with awards in comparable class action litigations in the
Atlanta market:
Taking into account the work required to achieve the results obtained for
the plaintiff class in this case, the level of expense and risk entailed for
class counsel to prosecute this case over a three-year period with
recovery of fee and investment in advanced case expenses, and fees
actually awarded by courts in class actions in this district in securities,
antitrust and other types of non-civil rights cases presenting comparable
complexity and risk, a multiplier of no less than 1.5-2 times the lodestar
amount . . . would yield a reasonable fee consistent with prevailing
prices in the Atlanta legal market for legal services of comparable value.
[Fellows Decl., R32:495:Ex.G:¶8; see also Chandler Decl., R32:495:Ex.F:¶8;
Rawls Decl., R32:495:Ex.H:¶8.]
Judge Carnes’ opinion discounts these affidavits on the ground that the
factors identified in them—the lack of ongoing payment, the advancement of case
expenses, and the contingent nature of the fee recovery and
reimbursement—cannot support an enhancement. I agree with that conclusion
insofar as it pertains to contingency. See City of Burlington v. Dague, 505 U.S.
557, 567, 112 S. Ct. 2638, 2643-44, 120 L. Ed. 2d 449 (1992) (holding that
enhancement for contingency is not permitted under fee-shifting statutes). The
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other two factors, Judge Carnes believes, have already been accounted for because
the lodestar was calculated using current rather than historic hourly rates. See ante
at 33-34(citing Norman, 836 F.2d at 1302). But we did not hold in Norman that
the use of current rates will always be sufficient to compensate for delayed
payment. Here, the affidavit testimony indicates that the rates used to calculate the
lodestar, although current, would be inadequate to provide a reasonable fee in light
of the exceptionally high commitment of capital resources by the attorneys and the
three-year delay in receipt of payment. The district court properly relied on this
evidence in concluding that an upward adjustment was warranted.
Judge Carnes’ opinion also faults the district court for failing to give
sufficient weight to the testifying attorneys’ own interest in securing a high fee
award for plaintiffs’ counsel in this case. But determinations as to the credibility
and the weight of testimonial evidence are clearly within the purview of the
district court in these circumstances. See Childrey v. Bennett, 997 F.2d 830, 834
(11th Cir. 1993) (“[I]t is the exclusive province of the judge in non-jury trials to
assess the credibility of witnesses and to assign weight to their testimony.”). Such
determinations always involve an assessment of the factors bearing upon a
witness’s objectivity. It cannot reasonably be contended that the able and
experienced district judge in this case never considered the possibility that the
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affiants—who are prominent Atlanta attorneys—might be known by plaintiffs’
counsel, or that they could derive an indirect benefit from the precedential value of
a high fee award. The court concluded, however, that these considerations were
outweighed by other factors that bolstered the probative value of their testimony.
These included the court’s familiarity with the affiants, their reputations in the
Atlanta legal community, and their experience in complex class action litigations.
See Kenny A. III, 454 F. Supp. 2d at 1290. Absent any showing of clear error, it is
improper for us to second-guess the court’s determination, even if we would have
made a different credibility finding or weighed the evidence differently. Johnson
v. DeSoto County Bd. of Comm’rs, 72 F.3d 1556, 1561 n.5 (11th Cir. 1996) (“The
credibility of competing experts and the weight to be accorded the evidence
submitted by both sides will, of course, be decided by the district court, subject
only to clearly erroneous review on appeal.”); Jones v. Childers, 18 F.3d 899, 908
(11th Cir. 1994) (“We . . . will not presume to second guess the trial judge’s
assessment of the credibility of the witnesses and the weight assigned to their
testimony.”). Such deference is particularly appropriate in this case, given that the
defendants did not introduce evidence challenging the attorneys’ conclusion that
an enhancement was necessary to yield a fee consistent with prevailing rates in the
Atlanta legal market for similar services.
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In addition to the affidavits, the district court took into account its personal
observations of the attorneys’ performance in this case:
[T]he court finds that the superb quality of [counsel’s] representation far
exceeded what could reasonably be expected for the standard hourly
rates used to calculate the lodestar. Quite simply, plaintiffs’ counsel
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 during its 27 years on the bench. The
foster children of Fulton and DeKalb Counties were indeed fortunate to
have such unparalleled legal representation, and the Court would be
remiss if it failed to compensate counsel for this extraordinary level of
service to their clients.
Kenny A. III, 454 F. Supp. 2d at 1288-89; see also id. at 1286 (“[B]ased upon the
Court’s own substantial experience and familiarity with the prevailing rates in
Atlanta, and the Court’s observation of the stellar performance of plaintiffs’
counsel throughout this long and difficult case, it finds the requested hourly rates
eminently fair and reasonable. If anything, they are too low.”).
In the area of fee awards, it is well established that “[t]he court . . . is itself
an expert on the question and may consider its own knowledge and experience
concerning reasonable and proper fees and may form an independent judgment . . .
as to value.” Norman, 836 F.2d at 1303 (quoting Campbell v. Green, 112 F.2d
143, 144 (5th Cir. 1940)). As part of this determination, the court may factor in its
personal assessment of the quality of counsel’s representation. See Duckworth v.
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Whisenant, 97 F.3d 1393, 1397 (11th Cir. 1996). The district court thus did not
err in relying on these considerations as additional grounds for an enhancement.
As to the results obtained, the court found that the plaintiffs’ success was
“truly exceptional.” Kenny A. III, 454 F. Supp. 2d at 1289. The court provided a
detailed summary of the Consent Decree entered into by the parties, finding that it
provided “sweeping relief to the plaintiff class” and was “comprehensive in its
scope and detailed in its coverage.” Id. Based on these considerations, the court
found the result achieved to be “extraordinary,” particularly in light of “the
contentiousness of the litigation, complexity of the issues and the uncertainties and
delays of further litigation.” Id. at 1290 (internal quotation marks omitted). To
underscore the truly exceptional nature of the outcome, the court again cited its
own experience: “After 58 years as a practicing attorney and federal judge, the
Court is unaware of any other case in which a plaintiff class has achieved such a
favorable result on such a comprehensive scale.” Id.
Judge Carnes’ opinion takes issue with the court’s statement that the
remedial measures established by the Consent Decree go beyond the relief the
plaintiffs likely would have obtained had they prevailed at trial. We have
recognized, however, that the unexpected nature of a result is relevant to the
determination of whether it is exceptional. See Norman, 836 F.2d at 1302 (“[A]n
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outcome that is not unexpected in the context of extant substantive law will not
ordinarily be exceptional.”). In finding exceptional results here, the district court
did not err in considering the fact that the remedies agreed upon by the parties
exceeded its own expectations as to the nature and scope of relief likely to result
from this litigation. See id. (“Exceptional results are results that are out of the
ordinary, unusual or rare.”).
Moreover, other courts have recognized that results similar to those
obtained here can justify an enhancement. For example, in Hyatt v. Apfel, 195
F.3d 188 (4th Cir. 1999), the Fourth Circuit affirmed an enhancement for results
obtained where the plaintiff class prevailed in challenging a Social Security
Administration policy pertaining to disability benefits. The enhancement was
proper, the court held, because the plaintiffs “succeeded in bringing about
fundamental change to a recalcitrant agency,” the challenged policy affected the
determination of hundreds of thousands of disability claims, and the government
promulgated new national regulations in response to the litigation. Id. at 191-92.
The court also found it significant that “[t]hese results were obtained in the face of
monumental resistance [by the government] on every claim.” Id. at 192. These
factors closely resemble those involved in this case, where the plaintiffs succeeded
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in effecting systemic changes to the foster care systems in Fulton and DeKalb
Counties, in spite of considerable opposition by defendants.
Likewise, in Shipes v. Trinity Industries, 987 F.2d 311 (5th Cir. 1993), the
Fifth Circuit held that an enhancement might be warranted for the results obtained
in a “lengthy and protracted” Title VII class action. Id. at 322. The court noted
that the plaintiff’s victory was complete on all issues and resulted in both
substantial monetary damages and, “very importantly, future protection against
discrimination in the form of injunctive relief.” Id. The Consent Decree in this
case provides similarly comprehensive relief. It remedies numerous existing
deficiencies in the delivery of foster care services and provides safeguards against
future unlawful conduct by defendants. These results are no less exceptional than
those obtained in Shipes.
Additionally, we have recognized that the public benefit created by a
lawsuit is an important factor in the determination of a reasonable fee award. In
Villano v. City of Boynton Beach, 254 F.3d 1302 (11th Cir. 2001), we held that the
district court erred in reducing a plaintiff’s fee award without considering the
public benefit of the case. Id. at 1307. We stated that “[p]ublic benefit is a
distinct measure of success in civil rights actions,” and thus it must be accounted
for in the calculation of a fee award. Id. We further recognized that the
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vindication of a constitutional right against a government institution heightens a
lawsuit’s public benefit by deterring future unconstitutional conduct by public
officials. Id.; see also Popham v. City of Kennesaw, 820 F.2d 1570, 1580 (11th
Cir. 1987) (“The affirmation of constitutional principles produces an undoubted
public benefit that courts must consider in awarding attorneys’ fees under Section
1988.”). Accordingly, we instructed the district court as follows:
On remand, the district court must examine the qualitative value of
[plaintiff’s] successes. In doing so, the court needs to account for the
vital role private litigation plays in the enforcement of civil rights, the
difficulties involved in sustaining those lawsuits, the heightened
importance of such lawsuits when the defendant is a public body, and
the public benefit that occurs when those lawsuits ultimately vindicate
a constitutional right.
Villano, 254 F.3d at 1308 (citation omitted).
Although Villano involved the reduction of a fee award rather than an
enhancement, its principles are relevant to this case. Through the provisions of the
Consent Decree, the plaintiffs have obtained redress for the constitutional
violations alleged in the complaint, thereby vindicating the constitutional rights of
the class members. Given the scope of the remedial measures agreed to by the
defendants, the public benefit created by this litigation is enormous. See Norman,
836 F.2d at 1302 (stating that vindication of class-wide rights is generally more
significant than relief for isolated constitutional violation). This consideration
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further supports the conclusion that an enhancement for exceptional success is
warranted in this case.4
III.
I find no abuse of discretion in the district court’s fee award. The court
made detailed findings as to why the lodestar did not fully reflect the quality of
representation and the results achieved in this case, and those findings are
supported by specific evidence in the record. Because I conclude that the district
court’s decision is consistent with controlling Supreme Court and Eleventh Circuit
precedents, I concur only in the result.
4
Judge Carnes’ opinion argues that the public benefit created by a lawsuit cannot be a
factor supporting an enhancement because every suit that vindicates a federal right benefits the
public in some way. Therefore, he argues, taking the public benefit into account would result in
an enhancement in every successful fee case. I disagree. The fact that every vindication of
federal rights confers some public benefit does not mean that the benefit is equal in every case.
The present case underscores this point. The district court’s opinion demonstrates that the public
benefit created here was truly exceptional, far exceeding that achieved in the majority of cases of
this type. See Kenny A. III, 454 F. Supp. 2d at 1290 (“After 58 years as a practicing attorney and
federal judge, the Court is unaware of any other case in which a plaintiff class has achieved such
a favorable result on such a comprehensive scale.”). Taking this factor into account is proper
under the “results obtained” analysis, which asks whether the outcome in the case was “out of the
ordinary, unusual or rare.” Norman, 836 F.2d at 1302.
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Hill, J., concurring:
I concur in the judgment. The enhancement by the district court is due to be
affirmed because we are bound by the prior cases of our court, NAACP v. City of
Evergreen, 812 F.2d 1332 (11th Cir. 1987), and Norman v. Housing Authority of
Montgomery, 836 F.2d 1292 (11th Cir. 1988).
I do not add anything to my colleagues’ discussions of the holding and
opinions in those cases other than to acknowledge that they are scholarly and well
done.
No doubt these additional writings will be of interest to jurists who might
wish to pursue the matter in further proceedings, should any arise.
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