Wilson v. Long

IN THE UNITED STATES DISTRICT COURT FOR THE

MIDDLE DISTRICT OF TENNESSEE

NASHVILLE DIVISION

MELISSA WILSON, et al., )

individually and on behalf of all )

others similarly situated, )

)

Plaintiffs, ) NO. 3:14-cv-01492

)

v. ) JUDGE CAMPBELL

) MAGISTRATE JUDGE

WENDY LONG, et al., ) NEWBERN

)

Defendants. )

MEMORANDUM

Pending before the Court is Plaintiffs’ Motion for Attorneys’ Fees and Costs. (Doc.

No. 272). Through the Motion, Plaintiffs request $372,725 in attorneys’ fees and costs on the

grounds that they are the prevailing party on the motion for preliminary injunction. Defendant

filed a response in opposition to the Motion (Doc. No. 276) and a Notice of Supplemental

Authority (Doc. No. 283). Plaintiffs replied. (Doc. Nos. 282, 284).

For the reasons stated below, Plaintiffs’ Motion for Attorneys’ Fees and Costs is

GRANTED in part.

I. BACKGROUND

On July 23, 2014, Plaintiffs filed the instant suit for themselves and on behalf of unnamed

Tennesseans who applied for Medicaid coverage in Tennessee (“TennCare”) and did not receive

timely eligibility determinations. Plaintiffs alleged Defendants (the “State”) was failing to provide

timely determinations of TennCare eligibility, in violation of 12 U.S.C. § 1396a(a)(8) (Count I);

and failing to provide any sort of fair hearing on the delayed adjudications in violation of 42 U.S.C.

§ 1396(a)(a)(3) and the Due Process Clause (Counts II and III).

At the time the Complaint was filed, the named Plaintiffs had applications for TennCare

benefits that had been pending for five to nine months without an eligibility determination. When

they asked about a hearing, Plaintiffs were told “they do not do those hearings” and “there was no

way [to] appeal without a determination of [their] eligibility.” (See Doc. No. 91 at 2). The Court

held a hearing on Plaintiffs’ motion to certify class and for a preliminary injunction on August 29,

2014. Before the hearing occurred, the named Plaintiffs were enrolled in TennCare.

On September 2, 2014, The Court certified the following class as requested by Plaintiffs1:

All individuals who have applied for Medicaid (TennCare) on or after

October 1, 2013, who have not received a final eligibility determination in 45

days (on in the case of disability applicants, 90 days), and who have not been

given the opportunity for a “fair hearing” by the State Defendants after these

time periods have run.

(Doc. No. 90). The Court also entered a preliminary injunction ordering Defendants to provide

hearing to those individuals whose applications were delayed (Doc. No 91). The Court found “it

is clear that irreparable harm has occurred and will continue to occur without the issuance of

injunctive relief.” The preliminary injunction ordered:

The Defendants are enjoined from continuing to refuse to provide “fair

hearings” on delayed adjudications, as required by 42 U.S.C. § 1396a(a)(3)

and 42 C.F.R. § 435.912(c)(3). More specifically, based on these provisions,

and the Fourteenth Amendment Due Process Clause, the Defendants are

ordered to provide the Plaintiff Class with an opportunity for a fair hearing

on any delayed adjudication. Any fair hearing shall be held within 45 days

after the Class Member requests a hearing and provides the Defendants with

proof that an application for medical assistance was filed (or the hearing shall

be held within 90 days after that date, if the application was based on

disability).

1 The Court’s certification was a more concise wording of Plaintiffs’ request. Plaintiffs had

requested certification of the following class: “[A]ll individuals who have applied for TennCare on or after

October 1, 2013, who have not received a final eligibility determination in a timely manner, and who have

contacted the Tennessee Health Connection or its successor entity for assistance with that application.” (See

Doc. No. 90).

(Doc. No. 91). The preliminary injunction did not, however, grant Plaintiffs’ requested relief as

to all claims. In the Motion for Preliminary Injunction (Doc. No. 4), Plaintiffs also requested

injunctive relief as to Count I – requiring the State to adjudicate the Medicaid applications with

“reasonable promptness,” pursuant to 42 U.S.C. § 1396(a)(8).

Shortly after the Court issued the preliminary injunction, the State enacted legislation

codifying an appeals system that met the requirements of the preliminary injunction. See TENN.

COMP. R. & REGS. 1200-13-19 et seq. (emergency rule filed Nov. 7, 2014). On August 10, 2016,

the Court of Appeals for the Sixth Circuit affirmed the preliminary injunction ruling. (Doc. No.

159); see Wilson v. Gordon, 822 F.3d 934 (6th Cir. 2016) (affirming the district court ruling on

the preliminary injunction).

At trial on October 9 and 10, 2018, the parties stipulated that the State has complied with

the preliminary injunction since August 2015. (Doc. No. 244 at 6). Plaintiffs stipulated the delay

appeal process, codified in TennCare Rules at 1200-13-19 et seq., was available to class members

upon request when their applications for Medicaid were not acted upon with reasonable

promptness. (Findings of Fact and Conclusions of Law, Doc. No. 269 at 9). The evidence

presented at trial showed that, since August 2015, every delayed application processing appeal for

which there was proof of a delayed application had been closed for one of the following reasons:

1) the appellant failed to provide the requested information necessary to process his/her

application; 2) an eligibility determination was made and a hearing was no longer necessary; or 3)

a fair hearing on the reason for the delay was provided within 45 days. (Id.). Although delays were

once widespread, during 2017, the last year for which data was available at the time of the trial,

fewer than 1% of applicants filed a delayed application appeal. (Id. at 10). Of those for which a

delayed application appeal was filed, 100% were resolved either through a determination of

eligibility or a hearing within the 45 or 90-day appeal period. (Id. at 17 n.3).

At the conclusion of the trial, the Court denied Plaintiffs’ request for a permanent

injunction. The problems with the TennCare application process that existed at the

commencement of the lawsuit had been corrected so that, at the time of the trial, Defendants were

in substantial compliance with the law and Plaintiffs were unable to show a continuing violation

of the law or any “existing or imminent invasion” of their rights.

This ruling was based on the changed landscape of the Medicare application process. The

Court stated:

Throughout the course of this lawsuit, Plaintiffs have consistently requested

(1) a declaration that Defendants are violating Section 1396a(a)(3), and (2)

an injunction that requires Defendants to provide TennCare applicants with

an opportunity for a fair hearing to contest delays in determining their

eligibility for TennCare. The stipulated facts and evidence at trial establish

Plaintiffs have received what they requested. Specifically, the parties

stipulated that a delayed application appeals process is both codified in the

TennCare regulations, TENN. COMP. R. & REGS. 1200-13-19 et seq., and

available to all class members.

Defendants demonstrated at trial that they have no intention of abandoning

this process in the absence of judicial supervision. Plaintiffs offer no

evidence to the contrary. The Sixth Circuit presumes good faith on the part

of government officials when a change in conduct is made, and “such self-

correction provides a secure foundation for a dismissal based on mootness so

long as it appears genuine.” Bench Billboard Co. v. City of Cincinnati, 675

F.3d 974, 981 (6th Cir. 2012); see also Rio Grande Silvery Minnow v. Bureau

of Reclamation, 601 F.3d 1096, 1116 n.15 (10th Cir. 2010) (citing similar

cases applying the same presumption).

…

Though it may not be a perfect system, Defendants have implemented and

codified the process Plaintiffs sought through this lawsuit: fair hearings

required under Section 1396a(a)(3) for TennCare applicants whose

applications are not processed within 45 or 90 days. Thus, Plaintiffs are

unable to establish at least one of the requirements for the extraordinary

remedy of a permanent injunction: that they will suffer irreparable harm

absent permanent injunctive relief. Winter v. Natural Resources Def. Council,

555 U.S. 7, 20, 32 (2008). To the contrary, the evidence at trial established

Defendants have provided TennCare applicants with an opportunity for a fair

hearing to contest delays in determining their eligibility for TennCare, and

have codified that process at TENN. COMP. R. & REGS. 1200-13-19 et seq..

Accordingly, there is no further injunctive relief for this Court to grant on

Plaintiffs’ Section 1396a(a)(3) claim. Because any original violations of

Section 1396a(a)(3) were remedied by this Court’s preliminary injunction

and Defendants’ subsequent enactment of TENN. COMP. R. & REGS. 1200-13-

19 et seq., Plaintiffs fail to show there is any “existing or imminent invasion”

of their rights so that they are entitled to declaratory relief. Angell v. Schram,

109 F.2d 380, 381 (6th Cir. 1940).

(Findings of Fact and Conclusions of Law, Doc. No. 269 at 14–15).

Plaintiffs claim to be the “prevailing party” with regard to the preliminary injunction and

filed the instant motions seeking attorneys’ fees and costs related to filing the lawsuit and

preliminary injunction. (Doc. No. 272). Defendants argue that Plaintiffs are not prevailing parties,

but if the Court determines Plaintiffs have “partially prevailed” and are entitled to some fee, the

fees should be substantially reduced.

II. ANALYSIS

Under the “American Rule,” parties typically pay their own attorneys’ fees. Congress

created an exception to the American Rule that allows the prevailing party in a civil rights suit to

recover attorneys’ fees and costs. See 42 U.S.C. § 1988(b) (“the court, in its discretion, may

allowing the prevailing party, other than the United States, a reasonable attorney’s fee as part of

the costs); Miller v. Caudill, 936 F.3d 442, 447 (6th Cir. 2019).

A. Prevailing Party

Generally, the prevailing party is one who receives a final judgment in his or her favor. In

providing for fees under § 1988, “Congress intended to permit … the award of counsel fees only

when a party has prevailed on the merits.” Binta B. ex rel S.A. v. Gordon, 710 F.3d 608, 620 (6th

Cir. 2013) (quoting Hanrahan v. Hampton, 446 U.S. 753, 758 (1980)). To be considered a

prevailing party for purposes of an award of attorneys’ fees, a party need not prevail on every

claim. “Over time, ‘prevailing on the merits’ has been distilled to succeeding on any significant

issue which achieves some of the benefit the parties sought in bringing the suit, the settling of

some dispute which affects the behavior of the defendant toward the plaintiff, and resolution of

the dispute in a way that … alters the legal relationship of the parties.” Id. (citing Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983)).

A recipient of a preliminary injunction who ultimately loses on the merits is not entitled to

attorneys’ fees. Sole v. Wyner, 551 U.S. 74, 78 (2007) (“[A] plaintiff who achieves a transient

victory at the threshold of an action can gain no award under [§ 1988’s] fee shifting provision if,

at the end of the litigation, her initial success is undone and she leaves the courthouse

emptyhanded.”). The decision in Sole left open the question of whether, in a case in which there

was no final decision on the merits, “success in gaining a preliminary injunction may sometimes

warrant an award of counsel fees.” Id. at 78.

1. Plaintiffs’ Claims Remedied By The Preliminary Injunction Were Moot

Defendants argue that, as in Sole, Plaintiffs’ claims were decided “on the merits” at trial

and, therefore, counsel fees are not available. Plaintiffs argue that Sole is distinguishable and that

the Court’s final disposition of the claims in this case more analogous to claims, such as those

raised in Miller v. Caudill, 936 F.3d 442 (2019), that have become moot than to claims decided

“on the merits.”

In Sole, the plaintiff challenged a state law banning nudity in parks. Id. at 78-79. The

plaintiff wanted to create antiwar art in the form of a peace sign composed of nude bodies on a

public beach on Valentines’ Day. Id. Two days before the anticipated production, the plaintiff

filed an emergency motion for preliminary injunction to prevent the defendants from interfering.

Id. The court issued a preliminary injunction and the plaintiff created the peace symbol display

on the beach. Id. at 80. Thereafter, the plaintiff continued her challenge to the law banning nudity

in state parks and pursued a permanent injunction – she intended another nude production the

following year. Id. at 80. The district court, upon consideration of a “fuller record,” rejected the

plaintiff’s challenge to the nudity law. Id. at 80-81, 85. The court determined that the prohibition

of nudity was “no greater than essential … to protect the experiences of the visiting public,”

dissolved the preliminary injunction, and entered judgment in favor of defendant. Id. at 80-81, 85.

On these facts, the Supreme Court held that the plaintiff was not the prevailing party because the

district court rendered a “final decision on the merits” and “rejected the same claim she advanced

in her preliminary injunction motion: that the state law banning nudity in parks was

unconstitutional.” Id. at 86.

In contrast to the decision “on the merits” in Sole, in Miller, the Sixth Circuit vacated a

preliminary injunction and held that the claims were rendered moot. 936 F.3d at 447. In Miller, a

county clerk, in the wake of the Supreme Court’s decision recognizing same-sex marriage in

Obergefell v. Hodges, 135 S. Ct. 2584 (2015), stopped issuing marriage licenses and instructed her

deputy clerks to do so also. Id. at 446. Plaintiffs were four couples who unsuccessfully sought

marriage licenses during this time. Id. The Miller court issued a preliminary injunction enjoining

the clerk from “enforcing her policy” — essentially ordering her to issue marriage licenses. Id.

The clerk refused to comply with the preliminary injunction, choosing jail time instead. Id. While

she was in jail, her deputy clerks issued marriage licenses to six of the eight plaintiffs (two others

decided not to wed); four of those six used the licenses to wed. Id. While the case was pending,

the Kentucky General Assembly amended Kentucky law so that county clerks were not required

to sign marriage licenses, and in response to this change in law, the defendant agreed to issue

marriage licenses (or not interfere with her deputies doing so) and asked the Sixth Circuit to

dismiss her pending appeals. Id. at 447. The Sixth Circuit dismissed the appeals and instructed

the district court to vacate the preliminary injunction. Id. On review of a motion for attorneys’

fees, the Sixth Circuit considered that the plaintiffs’ claims had been mooted by the ensuing

legislation and the clerk’s decision to issue marriage licenses. Id. at 448.

The circumstances in this case are more closely analogous to Miller than to Sole. As to the

claims which were the subject of the preliminary injunction (Counts II and III), the Court found

that the enacted legislation codifying the Court’s preliminary injunction mooted the claims and in

light of Defendants’ demonstration at trial that they have no intention of abandoning this process

in the absence of judicial supervision, “such self-correction provides a secure foundation for a

dismissal based on mootness so long as it appears genuine.” (Findings of Fact and Conclusions of

Law, Doc. No. 269 at 14 (citing Bench Billboard Co., 675 F.3d at 981)). On these grounds, the

Court vacated the preliminary injunction which required hearings on delayed adjudications and

denied Plaintiff’s request for a permanent injunction. (Id. at 19). Unlike in Sole, where plaintiff’s

constitutional challenge failed on the merits, here, as in Miller, Defendants demonstrated a

willingness to comply with existing law. In both cases it was a refusal to comply with the law that

the plaintiffs sought to enjoin. In Miller – the refusal to issue marriage licenses. Here – the refusal

to hold delayed adjudication hearings. In both cases, once the defendants exhibited a willingness

to comply with the law and did in fact comply, the claims were effectively moot. In contrast, in

Sole, the defendant was temporarily enjoined from enforcing a law, but once the injunction was

vacated, it presumably resumed enforcement.

2. Case Specific Inquiry

Having found that that Plaintiffs’ claims that were the subjected of the preliminary

injunction were not decided on the merits, but were rendered moot, the Court applies a “case

specific inquiry” to determine whether Plaintiffs were the “prevailing party.” See Miller, 936 F.3d

at 448. In Miller, the court held that in cases where a claim becomes moot and a preliminary

“injunction was all plaintiffs got,” courts must perform a “case specific inquiry,” focusing on

whether there was “court-ordered, material, enduring change in the legal relationship between the

parties,” to determine if the recipient of the preliminary injunction is the “prevailing party.” to

determine if the recipient of the preliminary injunction is a prevailing party. Id. The Miller court

summarized the requirements as follows: “First, for the change to have been court ordered, the

preliminary injunction must have cause it; it can’t stem from [defendants’] voluntary modification

of [] conduct. Second, for the change to have been material, it must have directly benefited

plaintiffs by altering how [defendants] treated them. And third, for the change to have been

enduring, it must have been irrevocable, meaning it must have provided plaintiffs with everything

they asked for.” Id. (emphasis in original).

In Miller, the court found the plaintiffs, who successfully obtained a preliminary injunction

prohibiting defendant from “enforcing her policy” of refusing to issue marriage licenses, were the

prevailing parties. Id. at 449. The Miller court reasoned that the change was court-ordered — the

defendant issued the marriage licenses only after the court ordered her to do so; the plaintiffs

obtained a material benefit — marriage licenses.; and the change was enduring — once the

plaintiffs secured marriage licenses, the defendant no longer had control over whether they “tied

the knot." Id. “In short, the injunction gave plaintiffs all the court-ordered relief they needed, and

the issuance of marriage licenses mooted their request for them.” Id. The court noted that the

Kentucky legislature’s alteration of the marriage license form, which ultimately convinced the

defendant to abandon her policy, did not negate the court-ordered change that resulted in the

plaintiffs being granted marriage licenses. Id. (“The relief plaintiffs obtained – the unobstructed

opportunity to secure pre-alteration marriage licenses – therefore stemmed from the preliminary

injunction, not from the legislature’s or [defendant’s] later voluntary actions.)

Here, the state was not providing delay adjudication hearings until ordered to do so by the

Court. Thus, the change was court-ordered. Second, the change was material — TennCare

applicants who, prior to the entry of the preliminary injunction, “had no recourse” or ability “to

appeal a delayed eligibility determination” were provided a delay appeal hearing. Finally, the

change was enduring as to all applicants who received a hearing. Defendants’ argument that the

hearing was not an enduring change because it did not require a decision on the delayed

application, misses the point. The hearing itself provides the relief requested on Plaintiffs’ due

process claim and is enduring in that the hearing cannot be “undone.”

Defendants also argue that it is apparent Plaintiffs did not get “all of the relief they

requested” through the preliminary injunction because they later requested additional procedural

requirements following the trial. (Def. Resp., Doc. No. 276-1 at 9). The fact that Plaintiffs

identified ways to improve the appeal process in the four-years Defendants were complying with

the preliminary injunction and hearing appeals, does not negate Plaintiffs’ success on the motion

for preliminary injunction. When Plaintiffs sought a preliminary injunction requiring defendants

to, among other things, provide delayed application appeals, Defendants were not providing an

opportunity for appeals at all. The preliminary injunction required them to do so. The other

requests for preliminary relief were remedial as to Count I (requiring a determination of eligibility

with reasonable promptness). Plaintiffs brought two claims and successfully obtained a

preliminary injunction as to one of those claims. This is sufficient basis on which to find Plaintiffs

are the “prevailing party” and eligible for a discretionary award of attorneys’ fees. See McQueary

v. Conway, 614 F.3d 591, 603 (6th Cir. 2010) (“A plaintiff crosses the threshold to ‘prevailing

party’ status by succeeding on a single claim, even if he loses on several others and even if that

limited success does not grant him the ‘primary relief’ he sought.”) (citing Tex. State Teachers

Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782, 789 (1989).

For these case-specific reasons, the Court finds that the Plaintiffs prevailed on their claims

related to the delay appeal hearing for purposes of 42 U.S.C. § 1998 and that the Plaintiffs are

entitled to their reasonable attorneys’ fees and expenses reasonably attributable to these claims.

B. Reasonable Attorneys’ Fees

A prevailing party seeking attorneys’ fees pursuant to 42 U.S.C. § 1988 has two main

obligations: “(1) provide the court with ‘evidence supporting the hours worked and rates claimed

and (2) to demonstrate that the requested fee is ‘reasonable.’” Occupy Nashville v. Haslam, No.

3:11-cv-01037, 2015 WL 4727097 (M.D. Tenn. Aug. 10, 2015) (citing Building Service Local 47

v. Grandview Raceway, 46 F.3d 1392, 1402 (6th Cir. 1995). “A request for attorney’s fees should

not result in a second major litigation.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). “The

primary concern in an attorney fee case is that the fee awarded be reasonable, that is, one that is

adequately compensatory to attract competent counsel yet which avoids producing a windfall for

lawyers.” Adcock-Ladd v. Sec’y of Treasury, 227 F.3d 343, 349 (6th Cir. 2000).

Here, Plaintiffs have provided attorney declarations with itemized time records and task

descriptions. (See Doc. No. 272). This is sufficient evidentiary support for the fee request. The

remaining question is whether, in light of all of the circumstances of this case, the fee award sought

is reasonable. “The starting point for determining the reasonableness of a requested fee is the

‘lodestar’ analysis, whereby the requested fee is compared with the amount generated by

multiplying the number of hours reasonably worked on the litigation by the reasonably hourly

rate.” Occupy Nashville, 2015 WL 4727097, at * 9 (citing U.S. Structures v. J.P. Structures, 130

F.3d 1185, 1193 (6th Cir. 1997)). A reasonable hourly rate is determined by considering the skill,

experience, and reputation of the attorneys involved and the market in which they practice. Id.

(citing Adcock-Ladd, 227 F.3d at 350). If the requested fee is essentially in line with the “lodestar,”

then there is a strong presumption that the requested fee is reasonable and recoverable. Id.

In addition to the lodestar analysis, the court also considers any relevant “Johnson” factors

and whether some adjustment to the award is required under those factors. See Reed v. Rhodes,

179 F.3d 453, 471 (6th Cir. 1999) (citing Johnson v. Ga. Highway Express, Inc., 488 F.2d 714 (5th

Cir. 1974)). These factors are: (1) the time and labor required by a given case; (2) the novelty and

difficulty of the questions presented; (3) the skill needed to perform the legal service properly; (4)

the preclusion of employment by the attorney due to acceptance of the case; (5) the customary fee;

(6) whether the fee is fixed or contingent; (7) time limitations imposed by the client or the

circumstances; (8) the amount involved and the results obtained; (9) the experience, reputation,

and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the

professional relationship with the client; and (12) awards in similar cases. Id. The Sixth Circuit

has recognized that, often, these factors are naturally blended into the reasonableness analysis.

Paschal v. Flagstar Bank, 297 F.3d 431, 435 (6th Cir. 2002).

The “extent of a plaintiff’s success is a crucial factor in determining a proper award of

attorney’s fees.” Hensley, 461 U.S. at 440. Especially, “where a plaintiff is deemed ‘prevailing’

even though he succeeded on only some of his claims for relief.” Id. at 434. If a “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.” Id.

at 440. But, if the “lawsuit consists of related claims, a plaintiff who has won substantial relief

should not have his attorney’s fee reduced simply because the district court did not adopt each

contention raised.” Id. When determining how to reduce an unreasonable request for attorneys’

fees, “the district court may attempt to identify specific hours that should be eliminated, or it may

simply reduce the award.” Hensley, 461 U.S. at 436-37.

Plaintiffs have requested attorneys’ fees for legal work performed by attorneys for three

non-profit organizations that served as co-counsel in this case: the Tennessee Justice Center (TJC),

the National Health Law Program (NHeLP), and the Southern Poverty Law Center (SPLC).

Plaintiffs state that although many attorneys and non-attorneys from each organization contributed

to the litigation, they have limited the fee request to two attorneys per organization: Samuel

Brooke and Sara Zampierin for the SPLC, Gordon Bonnyman, Jr. and Christopher Coleman, for

the TJC, and Jane Perkins and Elizabeth Edwards for the NHeLP. In recognition of their limited

victory in this case, these attorney submitted detailed time records showing only time spent related

to: (1) filing the complaint; (2) securing the preliminary injunction and class certification orders;

(3) defending those orders from Defendants’ first motion to dismiss; and (4) defending those orders

from Defendants’ second motion to decertify and dismiss. In addition, they voluntarily reduced

time spend on travel by 50%, and reduced hours across-the-board by 10% to account for the

multiple organizations working on the case. The total attorneys’ fees requested is $372,725.2

Plaintiffs also seek an award of expenses under 42 U.S.C. § 1988 in the amount of $2,630.92

2 This is the amount requested after Plaintiffs reduced the hourly rate requested for Mr. Coleman

from $400 to $350 per hour. (Doc. No. 282 at 9 n. 1).

incurred by the Southern Poverty Law Center, related to the filing fee, transcript of the hearing on

the request for a preliminary injunction and class certification, and travel.

1. Reasonable Rates

The rates sought for counsel range from $250 to $600 and corelate to the experience of

each attorney. Attorneys Robert J. Walker, David K. Taylor, and Charles W. Bone have filed

affidavits attesting to the reasonableness of the rates sought by these attorneys and the rates

requested are commensurate with those requested by attorneys of similar experience and expertise.

(See Doc. Nos. 272-8, 272-9, and 272-10). The two most experienced attorneys are Jane Perkins,

Legal Director of the National Health Law Program, who has over 35 years of experience, and

Gordon Bonnyman Jr., who has over forty-five years of experience, have requested $500 per hour

and $600 per hour, respectively.

Defendants do not object to the rates requested by attorneys for the Southern Poverty Law

Center or the National Health Law Program. They do, however, object to the hourly rate requested

for work by the attorneys for the Tennessee Justice Center – Mr. Bonnyman ($600) and Mr.

Coleman ($350).3 Defendants’ objections appear to be based entirely on lower hourly rates

claimed by Mr. Coleman and Mr. Bonnyman in a previous case. These objections are unfounded.

First, the Court notes that Defendants do not object to the $500 per hour rate claimed by Ms.

Perkins, who has ten years less experience than Mr. Bonnyman. The declarations submitted show

that the additional ten years of experience is accompanying by a billing rate increase of $150 to

$200 per hour. (See Doc. Nos. 272-8, 272-9, and 272-10). Moreover, Mr. Bonnyman has practiced

law for over 45 years and has specific expertise in the area of Medicaid litigation — he has testified

on Medicaid law and policy before congressional and state legislative committees, has written

3 Plaintiffs reduced the hourly rate requested for Mr. Coleman from $400 to $350 per hour to reflect

the 12 percent increase in prevailing rates since 2014. (Doc. No. 282 at 9).

extensively on Medicaid law and health policy, and has received numerous awards for his work.

Mr. Bonnyman’s legal experience combined with his expertise in health care law and policy,

specifically TennCare, and his reputation for excellent legal work, justifies his requested hourly

fee of $600 per hour.

Mr. Coleman’s requested rate of $350 per hour is justified for an attorney with over ten

years of experience and specialized expertise litigating federal lawsuits involving challenges to the

TennCare program. In addition, both Mr. Walker and Mr. Taylor stated that the Tennessee Justice

Center has a reputation for excellent legal work and that its attorneys would command fees at the

upper end of rates charged by Nashville area attorneys with equivalent experience. (Walker Decl.,

Doc. No. 272-10, ¶ 5; Taylor Decl., Doc. No. 292-9, ¶ 6). Accordingly, based on the declarations

submitted and the experience of counsel in this case, the Court finds that the hourly rates requested

by Plaintiffs’ counsel are reasonable and reflect the prevailing market rate in the community.

Defendants also complain that Mr. Bonnyman’s hours represent an unreasonable

percentage of the total hours and that he has spent too much time doing “low-level work” and work

unrelated to the relief Plaintiff’s obtained. On these grounds, Defendants request that the Court

reduce Mr. Bonnyman’s compensated hours by sixty percent. The Court has reviewed Mr.

Bonnyman’s time record and, with one exception detailed below, finds his hours to be reasonable

and related to the litigation. Moreover, the Court notes that Mr. Bonnyman has only requested

fees for slightly more than a third of the time spent on this case and, like all of the attorneys, has

reduced his time by an additional ten percent to account for the fact that two other law firms were

involved.

2. Non-Compensable Time

Defendants also complain that the fees requested for the following specific work is

excessive or non-compensable: prefiling discussions with the State; post-complaint advocacy

work; and work on the motion to dismiss and motion to decertify class.

First, Defendants argue that the number of hours spent preparing the complaint (113.4) is

excessive and that Plaintiffs cannot recover attorneys’ fees for time spent on non-litigation

discussions with the State. The Court disagrees. Time spent preparing the complaint is

compensable and on pre-filing discussions with the State is compensable. Section 1988 authorizes

fees “only for time reasonably expended on the litigation – in other words, time spent in this case.”

Binta B. ex rel S.A. v. Gordon, 710 F.3d 608, 630 (6th Cir. 2013) (emphasis in original).

Compensable prefiling work includes “[i]nvestigation, preliminary legal research, drafting of

demand letters, and working on the initial complaint.” Ray Haluch Gravel Co. v. Central Pension

Fund of Int’l Union of Operating Engineers & Participating Employers, 571 U.S. 177, 189 (2014).

Pre-litigation work on a case, including the drafting of demand letters is compensable because it

is “useful and of a type ordinarily necessary to advance the … litigation.” Ray Haluch Gravel Co.

v. Cent. Pension Fund of Int’l Union of Operating Engineers and Participating Employers, 571

U.S. 177, 189 (2014) (holding that investigation, preliminary legal research, and drafting demand

letters are “standard preliminary steps toward litigation”). Although Plaintiffs spent a considerable

amount of time preparing the case, given the complexity and parties involved, the time spent was

not unreasonable. The Court has reviewed the pre-litigation communications with the State (Doc.

Nos. 276-7, 276-8) and finds it represents work reasonably related to the claim upon which

Plaintiffs were ultimately successful.

Second, Defendants argue that Plaintiffs are not entitled to fees for “post complaint

advocacy work” to obtain “interim relief” for certain class members. Defendants assert that 74.6

hours related to this “interim relief” is unrelated to the litigation and non-compensable. Plaintiffs

disagree, arguing that lists of class members was directly related to the litigation and that their

stories were presented to the Court in support of the motion for preliminary injunction. The Court

agrees that reviewing class members is related to the litigation; however, specific vetting related

to interim relief is not. Having reviewed the time entries at issue, the Court will reduce the time

requested in this area as follows: Sara Zampierin (9.5 hours); Gordon Bonnyman Jr. (19 hours);

Chris Coleman (19 hours).

Revised hours calculations based on these reductions are as follows:

2014 2016-17

Attorney Hours Hours Total

Rate Rate

Claimed Claimed

Samuel Brooke 143.9 $300 19.6 $325 $49,540

(111.3 - 9.5)

Sara Zampierin $250 16.8 $300 $30,490

101.8

Gordon Bonnyman (340.4 - 19) $600 3.0 $600 $194,640

321.4

Chris Coleman (72.9-19) $350 1.6 $350 $19,425

53.9

Jane Perkins 52.0 $500 0.3 $500 $26,150

Elizabeth Edwards 102.3 $300 4.2 $325 $32,055

TOTAL $352,300

Finally, Defendants argue that Plaintiffs cannot recover fees for work on the motions to

dismiss and motion to decertify class because they were unrelated to the successful motion for

preliminary injunction and success on a motion to dismiss or motion to decertify class does not

justify an award of attorneys’ fees. While these motions do not constitute “success on the merits”

that would independently justify an award of attorney’s fees, the argument that Plaintiffs are not

entitled to fees for any work performed after the issuance of the preliminary injunction is

untenable. Plaintiffs are entitled to fees related to defending the preliminary injunction before this

Court for the practical reason that if the motion to dismiss the relevant claims had been granted,

the preliminary injunction would have been vacated. Moreover, in the Court’s Memorandum and

Order on the Motion to Decertify the Class and Dismiss the Case, the Court found that some

Medicaid applications continued to be delayed and “Defendants have not provided evidence that

that individuals with delayed applications are immediately provided with a fair hearing or a final

eligibility determination.” (Doc. No. 232 at 4-5). It was not until after a trial that the Court

concluded the issue of delayed application appeals was moot. Accordingly, Plaintiffs post-

injunction litigation related to this issue is compensable.4 See Miller, 936 F.3d at 452-53 (when

legal claims are related by a common core of facts, a prevailing plaintiff may recover fees for legal

services related to successful and unsuccessful claims).

3. Fee-Adjustment

After determining the lodestar amount, the Court can adjust the fee upward or downward

“to reflect relevant considerations peculiar to the subject litigation.” Adcock-Ladd, 227 F.3d at

349. However, “a ‘strong presumption’ favors the prevailing lawyer’s entitlement to his lodestar

fee.” Id. at 350. Thus, “modifications to the lodestar are proper only in certain ‘rare’ and

‘exceptional’ circumstances supported by both ‘specific evidence’ on the record and detailed

findings.” Id. (quoting Pennsylvania v. Delaware Valley Citizens’ Council, 478 U.S. 546, 565

(1986)).

4 Not only are the motions to dismiss related to the claim on which Plaintiffs were the prevailing party, the

45.5 hours claimed for opposing two motions to dismiss is extraordinarily low, especially considering that

the second motion to dismiss involved a hearing and pre- and post-hearing briefing. The Court declines to

reduce the compensable hours related to the motions to dismiss and motion to decertify class.

Defendants argue that the attorneys seek recovery for all time spent drafting the complaint

and litigating the preliminary injunction even though they were ultimately successful only on

claims related to the delayed adjudication appeal. Defendants argue that “[b]ecause the

preliminary injunction granted the Plaintiffs less than half the relief they requested, the Court

should reduce the total hours incurred by each attorney by 50 percent.” (Def. Resp., Doc. No.

276-1 at 14) (emphasis in original).

As Plaintiffs have taken it upon themselves to request significantly less that the full amount

expended on this litigation, the Court will not further reduce the award of attorneys’ fees.5 The

amount requested is reasonable in light of the success obtained and the complexity and duration

of the litigation. This case was heavily litigated over a period of four years. During that time, the

landscape of the Medicare application system in Tennessee changed so that when the case was

tried in October 2018, many of the systemic problems which existed at the outset had been

resolved. Part of the resolution was mandated by the preliminary injunction. While the

preliminary injunction was in place over 40,000 applicants were able to appeal a delay in the

processing of their Medicaid application, whereas before the preliminary injunction there was no

such process in place. In sum, as to this claim, Plaintiffs obtained “excellent” results. See Hensley,

461 U.S. at 435 (“Where a plaintiff has obtained excellent results, his attorney should recover a

fully compensatory fee.”) Although Plaintiffs were not successful on every claim, in large part

due to improvements made during the course of this litigation, this partial success is reflected in

Plaintiffs’ proactive reduction in the billable hours submitted for reimbursement. For these

reasons, except as provided above, the Court finds that further reduction in attorneys’ fees is not

warranted.

5 Mr. Bonnyman states that he has logged 969.1 hours on this case. If the full amount of his time

were billed, the total for his time alone would be $581,460.

Hl. CONCLUSION

Accordingly, Plaintiffs Motion for Attorneys’ Fees and Costs is GRANTED as follows:

Plaintiffs are awarded $352,300 in attorneys’ fees; and $2,630.92 in costs. Costs in the amount of

$2,630.92 shall be paid to the Southern Poverty Law Center. Attorneys fees shall be paid to the

Tennessee Justice Center in the amount of $214,065, the Southern Poverty Law Center in the

amount of $80,030, and the National Health Law Program in the amount of $58,205.

It is so ORDERED.

WILLIAM Oe A, J

UNITED STATES DISTRICT JUDGE

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