Petition for Writ of Certiorari — Gutierrez v. Guam Society of Obstetricians & Gynecologists

Supreme Court, U.S.

FILED

97-317 AUG 15 1997

. Ve tHe CLERK

In the

Supreme Court of the United States

October Term. 1997

Carl T. C. Gutierrez, official capacity, et al.

Petitioners.

Guam Society of Obstetricians and Gynecologists, et al.

Respondents.

On Petition For Writ of Certiorari

To The United States Court of Appeals

For the Ninth Circuit,

PETITION FOR WRIT OF CERTIORARI

CHARLES H. TROUTMAN III

Attorney General of Guam Acting

* MARIA G. FITZPATRICK

Assistant Attorney General

Counsel for Petitioners

Suite 2-200E. Judicial Center Building

120 West O'Brien Drive. Agana. Guam 96910

Tel. No.: 671 475-3324

© Counsel of Reco

QUESTIONS PRESENTED

1. Whether the court below erred by doubling

the fee awarded against the officials of the Government of

(Guam on the basis of factors already considered in the

enhanced loadstar fee.

.. Whether the court below erred by approving

the use of a multiplier to double an already enhanced lodestar

fee, absent a showing of actual difficulties in finding counsel.

3. Whether the lower court erred by doubling

fees because the legislature passed an unconstitutional law

and the Governor of Guam did not veto it.

4.

Whether the lower court erred by approving

fees to the American Civil Liberties Union-Reproductive

Freedom Project (hereafter ACLU/RFP) at the rates of the

largest New York City law firms rather than at prevailing

market rates in the relevant legal community of Guam absent

a Showing that local counsel was unavailable.

LIST OF PARTIES.

The following are the named plaintiffs in this suit

respondents herein) :

_ Guam Society of Obstetricians and Gynecologists;

Reverend Milton H. Cole, Jr.; Laurie Konwith; Edmund A.

Griley, M.D.; William S. Freeman, M.D; and John Dunlop,

M.D..

The following people were originally named as

defendants in their personal and official capacities:

Joseph F. Ada, Governor of Guam; Elizabeth Barrett-

Anderson, Attorney General of Guam: Leticia Espaldon,

Director of the Department of Public Health and Social

Services; and George B. Palican.

In the court below, on the issue of attorney's fees which

is the subject of this peittion, the following were defendants:

Carl T.C. Gutierrez, in his official capacity as Governor of

Guam; the Director of the Department of Public Health &

Social Services for the Territory of Guam; the Administrator of

the Guam Memorial Hospital Authority; the Attorney General

of the Territory of Guam; and the Members of the Guam

Election Commission.

Originally, the suite named as defendants, in their

official capacities, the persons who filled the above listed

positions. However, none of these people presently hold the

offices listed. Therefore, except for the substitution of the name

of the current Governor, the official titles are substituted for the

names of the individuals.

x

a

:

TABLE OF CONTENTS

PAGE(S)

QUESTIONS PRESENTED ..................000005.

LIST OF PARTIES ...............0000000.0000 00 ee i

TABLE OF AUTHORITIES ......................--. V

CITATION OF THE REPORTS OF

THE OPINIONS AND ORDERS IN

THE CASE BY THE COURTS BELOW ............... i

re i

TE 2

STATEMENT OF THE CASE .....................-. 3

A 8

I. THE DISTRICT COURT OF GUAM

IMPROPERLY DOUBLED THE

ATTORNEY FEES OF AC&B TO

COMPENSATE FOR’ FACTORS

THAT ARE SUBSUMED IN THE

LOADSTAR BY THE ENHANCED

Co TE 8

Il. THE COURT IMPROPERLY CON.

SIDERED THE UNDESIRABILITY

OF THE CASE ABSENT A SHOW-

ING OF ACTUAL DIFFICULTIES IN

FINDING LOCAL COUNSEL. ............ 12

-lii-

111. THE LOWER COURT'S APPLI-

CATION OF A MULTIPLIER OF

TWO RESULTED IN A FEE

AWARD THAT IS UNREASONABLE

AND PUNITIVE IN NATURE

Pete eu ee eee. 18

IV. THE LOWER COURT ERRED BY

CALCULATING THE FEES OF THE

ACLU/RFP AT NEW YORK RATES. ..____ 20

i) Se een RD een CN ee 23

TABLE OF AUTHORITIES

CASES PAGE(S)

Arrade v. Jamestown Housing Authority,

S2 F.3d 1179 (let Cir 1996) .. 2... ow ccc cc eee 19

Blum v. Stenson, 465 U.S. 886 (1984) .......... 9,10,20,23,24

Bouman v. Block, 940 F.2d 1211, 1236

9th Cir 1991) cert. denied 502 U.S. 1005 (1991) ...... 13

City of Burlington v. Dague,

FOO US. S50 (TFRD) nw va vine cc vncuce: 6,9,10,11,12,20,23

Cooper v. Pentecost, 77 F.3d 829 (5th Cir. 1996) ....... 18,20

Delaware Valley I, 478 U.S. 546, (1986) .......... 9,10,12,19

Department of Labor v. Triplett, 494 U.S. 715 (1990) . 15,16,17

Fadhl y. City and County of San Francisco,

859 F. 2.d. 649 (Sth Cir. 1986) .................... 13

Gates vy. Deukmejian, 987 F.2d 1392, 1405 (9th Cir 1992) .. 21

Guam Society of Obstetricians and Gynecologists,

et al. v. Ada, et al., 776 F.Supp 1422, 1426

Se er err mere 1,5

Guam Society of Obstetricians and Gynecologists,

et al. y. Ada, et al., No. 90-00013,

D. Guam June 25, 1991) .................6:. 1,4,9,11

Guam Society of Obstetricians and Gynecologists,

et al. y. Ada, et al., 776 F.Supp 1422

D. Guam 1990) aff'd 962 F. 2d 1366

Ith Cir. 1992), cert. denied, 505 U.S. 1011 (1992) ...... l

Gzuam Society of Obstetricians and Gynecologists,

et al. v. Ada, et al., 5 F.2d 536 (1993) (mem.) ......... 1,6

Guam Society of Obstetricians and Gynecologists,

EEE

et al. v. Ada, et al., 100 F.3d 691

Per CA TI nei ecedace 1,3,4,9,13,22

Guam Society of Obstetricians And Gynecologists,

100 F.3d 691, 704 (9th Cir. 1996

Kozinski, J. dissenting) .................. 4,8,9,13,22

Hadiz v. Johnson, 65 F.3d 532 (6th Cir. 1995 _. oss eee

Heiar v. Crawford County, Wis, 746 F.2d 1190. 1204

7th Cir. 1984), cert. denied, 472 U.S. 1027.

105. S.Ct. 3500, 87 L. Ed. 2d 631 (1985) .............

Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933.

1941, 76 LE. 20 40... cece c ec cc cece, 21

Huntington Branch, N.A.A.C.P. y. Huntington, \Y.,

961 F.2d 1048 (2nd Cir. 1992) ........0.0.00. 17,18

Jane L., Utah Women's Clinic and David Hansen,

et al. v. Bangarter, Civ. No. 91-C-345G.

Memorandum Decision and Order in re

Attorneys Fees, p.17, fn. 16, App. A,

Plaintiffs Award (C.C. Utah, June 29, 1993). eee

Aing v. Palmer, 950 F.2d. 771 (D.C. Cir. 1991).

cert. denied, 505 U.S. 1229, (1992)..... ......... 16,18

Lipsett v. Blanco, 975 F.2d 934 (1st Cir. 1992) ........... 19

Neft v. Vidmark, Inc., 923 F.2d 746 (9th Cir. 1991) ....... 21

Pennsyly ania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546 1986

Delaware Valley I) ......................... 9,12,19

Stewart v. Gates, 987 F.2d 1450, 1453

Wn Ce, TI cn ce eel ee 20,21

Walker v. U.S. Dept. of Housing and

Urban Development, 99 F.3d 761

ie Coe, SO eck oo a eee ee 12,20-21

ih

B.

B1.

D.

APPENDIX

Guam Society of Obstetricians and Gynecologists,

Ada. et al., No. 90-00013 (D. Guam Jan. 25. 1991

Guam Society of Obstetricians and Gynecologists,

Ada, et al., 5 F.3d 536 (9th Cir. 1993) (mem.

Guam Society of Obstetricians and Gynecologists,

Ada, et al., 5 F.3d, 536 (9th Cir. 1992) (Order

Guam Society of Obstetricians and Gynecologists,

Ada, et al., No. 90-00013 (D. Guam Dec. 10, 1993

Guam Society of Obstetricians and Gynecologists,

Ada, et al., No. 90-00013 (D. Guam Dec. 28, 1993

Guam Society of Obstetricians and Gynecologists,

Ada, et al., 100 F.3d 691 (9th Cir. 1996

Guam Society of Obstetricians and Gynecologists,

Ada, et al., slip op. (9th Cir. May 19, 1997

et al.

et al.

et al.

et al.

et al.

et al.

et al.

V.

Ve

ee

1

CITATION OF THE REPORTS OF THE OPINIONS

AND ORDERS IN THE CASE BY THE COURTS

BELOW

The original case on the merits of the action is Guam

Society of Obstetricians and Gynecologists, et al. v. Ada, et

al., 776 F.Supp. 1422 (D. Guam 1990), aff'd 962 F. 2d

1366 (9th Cir. 1992), cert. denied, 505 U.S. 1011 (1992).

The case on the issue of attorney fees is Guam

Society of Obstetricians and Gynecologists, et al. v. Ada, et

al., No. 90-00013 (D. Guam June 25, 1991) [Appendix Aj;

vacated and remanded 5 F.3d 536 (9th Cir. 1993) (mem.)

‘Appendix B1]; decision and order after remand No.

90-00013 (D. Guam Dec. 10, 1993) [Appendix C), aff'd

100 F.3d 691 (9th Cir. 1997) [Appendix E}, reh. denied

slip op. (9th Cir. May 19, 1997) [Appendix F).

JURISDICTION

The Ninth Circuit Court of Appeals entered its

judgment on November 7, 1996. A timely petition for

rehearing was denied on May 19, 1997. The jurisdiction

of this Court-is invoked under 28 U.S.C. §1254 (1). The

basis for federal jurisdiction in the court of first instance

is 42 U.S.C. §1983; 28 U.S.C. §§ 1291, 2107.

2

RABE RS =

42. U.S.C. §1988 (b

In any action or proceeding to enforce a provi-

sion of sections 1981, 1981a. 1982. 1983. 1985.

and 1986 of this title, title IX of Public Law 92-

318 (42 U.S.C.A. §1681 et seq.|, the Religious

Freedom Restoration Act of 1993 42 U.S.C.A.

$2000bbet seq.). tile V1 of the Civil Rights Act

of 1964 {42 U.S.C.A. § 2000d et sq.|. or section

1581 of this title, 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. except that in any action brought

against a judicial officer for an act or omission

taken in such officer's judicial capacity such

officer shall not be held liable for any costs.

including attorney's fees, unless such action was

clearly in excess of such officer's jurisdiction.

3

~ STATEMENT OF THECASE

On March 8, 1990 the Guam Legislature passed Bill

848. the “most restrictive anti-abortion law enacted

under the U.S. flag.” Guam Society of Obstetricians and

Gynecologists, et al. v. Ada, et al., No. 90-00013 (D. Guam

Dec. 10, 1993) at 7 [Appendix C). (CR 340 at 7).' The

bill was passed in spite of a well written opinion letter

written by the Attorney General of Guam advising the

legislature that the law was clearly unconstitutional.

Guam Society of Obstetricians and Gynecologists, et al. v.

Ada, et al., 100 F. 3d 691, 718 (9th Cir. 1996) [Appendix

Even before the bill was signed into law by the

Governor of Guam, the ACLU/RFP and the law firm of

Arriola Cowan and Bordallo (hereinafter AC&B) were

developing a litigation strategy and working on the brief.

(CR 275, para. 7, exhibit A; CR 258, exhibit C). On or

about March 18, 1990, the director of RFP traveled to

Guam in order to present Governor Ada with constitu-

tional arguments against signing the anti- abortion bill

into law and to assist AC&B in bringing a challenge to

' The author of the bill, Senator Belle Arriola, is the mother of

Anita Arriola, then an associate in the law firm representing

plaintiffs. J. Arriola, a senior partner in the plaintiffs’ law firm, is

her father.

* The Attorney General, who is appointed by the Governor of

Guam, is also a defendant in this case.

4

oa SP CRE see se ma Q7~ -

the statute in federal court. (CR 275. para 7.) The

Governor signed the bill into Law on March 19. 1990.

On March 23, two weeks after passage of the law, the

complaint and motion for temporary restraining order

were filed. (CR 7.) The parties stipulated to a continuing

temporary restraining order until the trial on the merits.

CR 12.) The initial reaction of the judge of the District

Court of Guam to the underlying controversy was as

follows: “I would have to say that in| eight years on the

bench, this is the easiest issue that I've ever been

confronted with.” R.T. 3-26-90, CR 18, at 7. Guam

Society of Obstetricians And Gynecologists. 100 F.3d 691,

704 (9th Cir. 1996) (Kozinski, J. dissenting) ‘Appendex

E}.

In conjunction with the motion for summary judg-

ment, Plaintiffs submitted the declaration of Robert F.

Rogers, PH.D., professor of political science at the

University of Guam to show how unpopular the abor-

tion statute was with Guam voters. Rogers conducted a

nonpartisan public opinion survey and came to the

conclusion that “Contrary to conventional wisdom.

Guam is apparently not overwhelmingly 'pro-life’.” CR.

116 Ex. V. Rogers found that 40% percent of the voters

on Guam were opposed to the Governor signing the

abortion bill. He rated his poll as accurate within 4%.

There was no trial or evidentiary hearing in this

case. The Judge's initial sentiments regarding the

simplicity of the case were echoed in his written opinion

granting the Plaintiffs’ summary judgement; “After the

emotionalism and stridency of opposing views are

stripped away, the strict legal issue before the Court is

not one difficult of resolution: Is Roe v. Wade the law in

the Territory of Guam?” Guam Society of Obstetricians

and Gynecologists v. Ada, 776 F.Supp. 1422, 1426 (D.

Guam 1990). The district court made clear that it did

not have to grapple with difficult legal theories or lines

of conflicting case law when arriving at the decision. In

fact, the Judge contended that the Governor's argument

had “no known precedent in American jurisprudential

history”. /d.

The same judge who found the case so easy to

decide and devoid of legal merit proceeded to award

plaintiffs’ counsel $552,000.00 in legal fees. The fee

award included a substantial enhancement of the hourly

rate of the members of the firm: A. Arriola's standard

rate of $120.00 enhanced to $175.00, Cowan's standard

rate of $130.00 to $195.00 and J. Arriola's standard rate

of $130.00 enhanced to $195.00. (Cr 258, para 19.). The

request was based on the claim that the case was factu-

ally and legally difficult. (CR 258, para 21, 22.) It also

included a request for multiplier to double the loadstar

fee, in part to compensate for the contingent nature of

the case.

The Territory of Guam appealed and the Ninth

Circuit vacated the award due to the intervening case of

-———- —

City of Burlington v. Dague, 505 U.S. 559 (1992). Guam

Society of Obstetricians and Gynecologists v. Ada, 5 F.2d

936 9th Cir. 1993) (mem) |Appendix B1).

On remand, the District Court reinstated the fee

award in full including the multiplier doubling fees.

The court gave the following reasons for its decision to

reinstate the award in full:

After due consideration the court declines to

lessen the multiplier of two or otherwise alter

its original award. While the risk of the contin-

gent fee did factor into the court's first decision,

the more important considerations as reflected

in the decision, were the extreme undesirability

of the case, the likelihood that no other attorney

on island would have accepted the case and the

rare and exceptional nature of the case particu-

larly in the small island community of Guam.”

CR 340 at 6). The court's finding that the case was

extremely undesirable is belied by evidence presented

by plaintiffs that 40% of Guam voters were apposed to

the statute.

Attorney General Elizabeth Barrett-Anderson

appointed by the Governor of Guam was named as a

defendant in this case her personal as well as official

capacity even though she took the position from the

beginning that the law was unconstitutional. Other

defendants such as Leticia Espaldon head of the De-

a

>

~~

/

partment of Public health had to retain private counsel

because they differed with the Attorney General as to

whether the law was constitutional or not. CR 288 at 2.

Contrary to the assertion of AC&B, the legal community

rallied behind the firm's efforts. The only evidence in

the record that anybody had difficulty getting a lawyer

was presented on behalf of defendant Leticia V.

Espaldon. The declaration of Attorney General Barrett-

Anderson stated that it was extremely difficult to find

any attorney on Guam willing to represent Espaldon

primarily because of the personal beliefs of the attor-

ney s on Guam. Patrick Wolff, who had family ties to

Espaldon, was finally persuaded to represent her. Guam

Society, 100 F.3d at 717 n.37 [Appendix E). (CR 288 at 2.°

The record is devoid of evidence that any of the

plaintiffs in this action experienced actual difficulties

obtaining an attorney to represent them. In fact, one of

the plaintiffs, Laurie Konwith, was approached by a

member of the AC&B firm to become a plaintiff in the

case. (CR 295, pg 5.) Konwith did not seek other counsel

to represent her in the case. (CR 295, pg 5-6.) Konwith

had a written agreement with AC&B concerning costs

and an oral agreement regarding fees with the ACLU

and AC&B. (CR 295, pg 6-7.) Konwith testified at her

deposition that it was her understanding that she had

no financial responsibility for the lawsuit. (CR 29,5 p. 7.

Plaintiff Howard Cole did not seek other representation

before asking to become a plaintiff in the case. (CR 296,

p.9.) Cole did not have a written fee agreement with

AC&B or the ACLU. (Cr 296, 7.) Cole was informed by

the ACLU that they take public interest cases and that

they did not bill the people they represent. (CR 296, 9.)

ACLU/RFP attorney, Simon Heller gave Cole the

impression that the case could not be lost. (CR 296,

p.10.

The court further noted that the multiplier was

appropriate in this case in part due to the “novel legal

aspects it presented as the most restrictive anti-abortion

law enacted under the U.S. flag.” Guam Society, No.

90-00013 (D. Guam Dec. 10, 1993) at 7 [Appendix C).

‘CR 340 at 7). Thus, the court “double counted” by

enhancing the hourly rate due to the difficulty of the

case and again considering it as a factor in applying the

multiplier. In addition, the court awarded an additional

$7,615.80 which constituted time and costs spent on

preparing the second fee application. As the dissent

notes, “...1 see no justification for charging the defen-

dants for preparing the first (erroneous) fee application

and then again for its success”. Guam Society, 100 F.3d

at 706, n.7 (Kozinski, J. dissent) [Appendix E}.

ARGUMENT

I. The District Court of Guam improperly dou-

bled the attorney fees of AC&B to compensate

for factors that are subsumed in the loadstar

by the enhanced hourly rate.

7 ———_- <- — nee, ee >

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A prevailing party in a civil rights action is entitled

to an award for a reasonable attorney's fee pursuant to

§ 1988. However, this Court has made it clear that fee

awards should not result in a “windfall” to counsel and

that fee shifting statutes were not “designed as a form of

economic relief to improve the financial lot of lawyers.”

Blum v. Stenson, 465 U.S. 886, 897 (1984); City of

Burlington v. Dague, 505 U.S. 557, 562-63 (1992): Pennsyl-

vania v. Delaware Valley Citizens' Council for Clean Air,

478 U.S.456, 565 (1986) (Delaware Valley 1). This Court

has established a “strong presumption” that the lodestar

represents the reasonable fee. Dague, 505 U.S. at 562.

Ignoring this Court's admonitions in Dague, supra,

the District Judge and the Ninth Circuit bestowed a

windfall to counsel by doubling fees for a total of

$552,000.00 plus interest. The exorbitant fee awarded

to counsel who prevailed in what Circuit Judge Kozinski

called this “laughably easy” case “is not reasonable

compensation for services prudently rendered; it is a

bounty paid to plaintiffs’ lawyers for having reeled in a

fat and rather sluggish fish.” Guam Society of Obstetricians

and Gynecologists, et al. v. Ada, et al., 100 F.3d 691, 705

‘9th Cir. 1996) (Kozinski, J. dissent) [Appendix E).

The district court arrived at this extravagant sum by

using factors such as the “undesirability” of the case and

the “novel legal aspects it presented” to enhance the fee

of AC&B twice. First, to calculate a reasonable hourly

fee and again to justify the award of double fees. Guam

10

- eeemennenaaeae — ——

- a rr rr |

Society, No. 90-00013 (D. Guam Dec. 10. 1993) at 6, 7

Appendix C). (CR 340 at 6. 7.) Thus, the district court

and the majority of the Ninth Circuit. ignored this

Court's holding that a lodestar may not be enhanced

based upon the difficult nature of a case, because

difficulty is necessarily reflected in a reasonable hourly

rate times a reasonable number of hours. Dague, 505

U.S. at 562-63, citing Delaware Valley I, 478 U.S. 546, |

565 (1986); Blum v. Stenson, 465 U.S. 886. 898 (1984). |

Circuit Judge O'Scannlain writing for the dissent |

from the order rejecting the petition for rehearing and

suggestion for rehearing en banc in Guam Society found

that the district judge's award in this case “flies straight |

in the face” of the Supreme Court's prohibition on

double counting fees.

This case called upon the district court to

decide whether Guam's ban on abortions was

unconstitutional under Roe v. Wade-not exactly

rocket science. The district judge considered it

“the easiest issue that he'd) ever been con-

fronted with.” Plaintiffs' counsel never-theless

claimed that 1,487 billable hours were reason.

ably necessary to secure this judicial break-

through. Surprisingly, the district judge

agreed, and awarded counsel $175 for each of

those 1487 hours. Our divided court affirmed

the award, citing statements of Guam attorneys

that $175 per hour or more was reasonable

1]

_ ee -

given the “magnitude and controversy” of the

case and “the considerable hostility the suit

engendered in the community.”

In my view, this kind of bounty to litigate

the self evident proposition that Guam's ban on

abortion violates Roe creates perverse incentives

for attorney's to run up hours in cases that

barely pass the laugh test. As if that were not

enough, however, the district court proceeded

to double the amount. producing a total award

of $443,642.56.

A district court simply cannot use the

difficult and controversial nature of a case both

to calculate a reasonable fee and then to en-

hance it. It's called “double counting,” and it's

not allowed. Dague. 505 U.S. at 562-63. The

Supreme Court explained in no uncertain terms

that a district judge may not enhance the lode-

star based on difficulty because difficulty neces-

sarily is reflected in a reasonable hourly rate or

a reasonable number of hours. Blwn. 465 U.S.

at 898-99. A district judge likewise may not

enhance the lodestar due to undesirability after

he inflates the hourly rate to reflect undesir-

ability.

e.,

12

—— ee a ween ead

a ane

Guam Society, slip op. 9th Cir. May 19. 1997) at 5756-57

O'Scannlain, J. dissent Appendix F .

The District Judge in the instant case used the

difficult and controversial nature of the case to award a

substantial enhancement to the normal hourly rates

charged by AC&B and then used the same justification

to double the fees. The resulting award of $552,000.00

for prevailing on a summary judgment motion is clearly

not what Congress intended by a reasonable attorney

fee.

The decision of the Ninth Cireuit directly conflicts

with the Supreme Court decision in City of Burlington ».

Dague, 505 U.S. 559% 1992) and Pennsylvania v. Delaware

| alley Citizens' Council for Clean Air, 478 U.S. 546 (1986

Delaware Valley 1. The decision of the lower court

directly conflicts with decision in the Fifth Circuit in |

Walker v,. U.S. Dept. of Housing and Urban Development. |

99 F.3d 761 5th Cir. 1966). The interpretation of the

federal fee shifting statute, 42 U.S.C. $1988, to permit

the use of a multiplier to double the loadstar fee is a

matter of national application in which there is a need

for uniformity. |

Il. The Court improperly considered the undesir-

ability of the case absent a showing of actual

difficulties in finding local counsel

The Ninth Circuit has approved the use of a multi-

plier where the undesirability of a case created an actual

13

difficulty for the plaintiff to obtain counsel. In Fadh/ ».

City and County of San Francisco, 859 F. 2.d. 649 (9th Cir.

1986) plaintiff approached 35 attorneys before she found

one who would take her case. /d. at 651. The plaintiff

in Bouman v. Block, 940 F.2d 1211, 1236 (9th Cir 1991)

cert. dented 502 U.S. 1005 (1991) was turned down by 16

attorneys before retaining counsel.

The facts in the instant case differ markedly from

Fadhl and Bouman where plaintiffs showed actual

difficulty in retaining counsel. The ACLU/RFP and the

firm of AC&B were working on the case even before the

law was passed. The attorneys approached one of the

plaintiffs to become a plaintiff. As Judge Kozinski notes

in his dissent: “This is not a case where plaintiffs tried

to get a lawyer but were repeatedly rebuffed”. Nonethe-

less, the majority held a multiplier was justified because

proof of actual difficulty in finding counsel is not

necessary. Guam Society, 100 F.3d at 697-698 ‘Appendix

E}.

The Ninth Circuit speculated that it was “unlikely”

that plaintiffs could have found other representation

because the affidavits of Guam attorneys such as Brad

Klemm expressed the opinion that it was “unlikely” that

the other qualified attorneys would have taken the case

were more credible than the affidavits of Guam attor-

neys such as Linda Ingles who stated she did not believe

“that the ACLU and the Plaintiffs would have experi-

enced difficulty in obtaining local counsel.” /d. at 698.

14

The absurdity of the majority's conclusion can best be

explained by the following quote:

A district court's factual findings are reviewed

in light of the record, not speculation. Al-

though one could speculate that other attorneys

on Guam might have agreed to represent Plain-

tiffs if offered the opportunity because lawyers

have a moral obligation to represent those with

unpopular views and might be able to sign a

million dollar book deal when the case is over

Dissent at 717 n.38), one could just as easily

speculate that only a lawyer with a strong pro-

choice philosophy and extensive public interest

law experience would have taken this case, of

which one could speculate there are few on

Guam. However as judges, we are not permitted

to engage in speculation. We are confined to

the evidence in the record and those inferences

that directly follow from that evidence.

ld.

While going to great lengths to say that judges should

not engage in speculation, the majority does just that by

ignoring the direct testimony of the plaintiffs themselves

which established that they had no difficulty finding

local counsel in favor of affidavits which “speculate”

whether plaintiffs would have difficulty in finding

counsel if AC&B had not taken the case. The Ninth

a a

——s

15

ee ———

Circuit majority in this case apparently believes that

even in cases where the plaintiff hires the first attorney

consulted, double fees can be awarded if affidavits

speculating on the unavailability of other counsel are

submitted to the court.

The holding of the Ninth Circuit should be re-

versed. The type of speculative and “anecdotal” evi-

dence which was relied upon in this case has been

rejected by this Court in Department of Labor v. Triplett,

494 U.S. 715 (1990).

As to the first issue-unavailability of attorneys-

the court relied upon three lawyers' assess-

ments. One stated that “fewer qualified attor-

neys are accepting black lung claims,” and that

more claimants are proceeding pro se. 180

W.Va., At 541, 378 S.E.2d, at 90. According to

a second attorney, “few attorneys are willing to

represent black lung claimants.” /bid. A third

lawyer's evaluation was not contained in the

record but consisted of his 1985 testimony to

the House subcommittee that “many of his

colleagues had'...stated unequivocally that they

would not take black lung cases....' “ /d., at 542.

378 S.E.2d, at 91 (citations omitted

We made clear in Walters that this sort of

anecdotal evidence will not overcome the pre-

16

sumption of regularity and constitutionality to

which a program established by Congress is

entitled. 473 U.S., at 324, n.11,105 S.Ct.. at

3190, n. 11. The impressions of three lawyers

that the current system has produced “few”

lawyers, or “Fewer Qualified Attorneys” (what-

ever that means) and that “many” have left the

field, are blatantly insufficient to meet respon-

dents burden of proof, even if entirely unrebut-

ted. /d. at 723-724.

Furthermore, the majority decision in Guam Society

directly conflicts with established decisional law in

other circuits. The court of appeals in King v. Palmer,

990 F. 2d 771 (D.C. Cir. 1991) relied upon the Supreme

Court's opinion in Triplett, supra, in holding that absent

a showing of actual difficulty in finding counsel, affida-

vits of attorneys unconnected to the case may not be

used as a basis for enhancement of the lodestar fee.

Aing, 950 F.2d at 779. The plaintiff King, like the

plaintiffs in the instant case, did not present evidence of

actual difficulties in securing counsel. King retained the

first attorney that she contacted. /d. at 778. The affida-

vits of attorneys who were not approached by Ms. King

and were never involved in the case were submitted to

support the claim that it was unlikely King could have

found other counsel. The D.C. Circuit en banc rejected

the affidavits as meeting the substantial difficulties test:

17

Without in any way denigrating the bona fides

of these lawyers, we cannot blink the fact that

they are obviously self-interested. We think it

is indisputable that if such evidence were

treated as determinative or even weighty the

substantial difficulties test would be met so

easily as to become a mere formality. The

Supreme Court has itself recently disparaged

such anecdotal evidence from attorneys uncon-

nected with the case in the context of attorney's

fees disputes. See United States Dep't of Labor v.

Triplett, 494 U.S. 715, 110 S.Ct. 1428, 1433-34,

108 L. Ed. 2d 701 (1990) (holding such evidence

to be “blatantly insufficient” to raise a constitu-

tional doubt about federal limits on attorney's

fees, “even if entirely unrebutted.”)

Id. at 779.

The court also rejected the affidavits from attorneys

who “hypothesized” whether the affiant would have

taken the case. /d. The affidavits in the instant case are

of the same speculative and hypothetical nature as those

rejected by the D.C. Circuit Court of Appeals in King.

In Huntington Branch, N.A.A.CP. . Huntington, N.Y.,

961 F.2d 1048 (2nd Cir. 1992), the district court awarded

a 75% enhancement of the lodestar fee in a civil rights

suit. The enhancement was based upon “conclusory

affidavits” by lawyers as to whether the plaintiff could

18

have had difficulty finding counsel. There were no facts

in the record which showed that the plaintiff had actual

difficulties in finding counsel. The Second Circuit

Court of Appeals reversed the 75% enhancement which

had been applied to the fees of both private counsel and

the NAACP attorney. /d. at 1049.

The Fifth Circuit has held that the undesirability of

the case is one of the factors subsumed in the lodestar.

Cooper v. Pentecost, 77 F.3d 829 Sth Cir. 1996). The

court further noted that it is questionable whether a

district court may use a multiplier as punishment under

$1988.

The decision of the Ninth Circuit in this case

directly conflicts with existing decisions of the Second

and D.C. Circuits which hold that the prevailing party

must show actual difficulties in finding counsel before

a multiplier can be awarded. Huntington Branch,

NAA.CP. 9, Huntington, N.Y., 961 F.2d 1048 (2nd Cir.

1992); King v. Palmer, 950 F.2d. 771 (D.C. Cir. 1991), cert.

dented, 505 U.S. 1229, (1992). The applicability of a

multiplier in connection with 28 U.S.C. § 1988, a federal

fee shifting statutes, is a matter of national application

in which there is a need for uniformity.

[1]. The lower Court application of a multiplier of

two resulted in a fee award that is unreason-

able and punitive in nature.

ee

19

Ninth Circuit Judge O'Scannlain states in his

dissent “I cannot tell whether our circuit has rejected

the Supreme Court's moratorium on double counting

for ‘controversial cases' or just allowed political correct-

ness to run amok.” Guam Society, slip op. (9th Cir. May

19, 1997) at 5758 (O'Scannlain, J. dissent) [Appendix F).

The award of fees in this case is so exorbitant that one

can only conclude that the district court and the major-

ity of the Ninth Circuit consider it is appropriate to

“punish” the taxpayers of Guam because the Guam

Legislature passed an unconstitutional statute pertain-

ing to abortion and the Governor of Guam failed to veto

it. One cannot help but wonder if the court would have

made such an award if the issues in the underlying case

were not so volatile and controversial in nature.

Federal fee shifting statutes such as §1988 were not

intended to be used to punish taxpayers for the errors of

their elected representatives. The intent was to provide

reasonable compensation to attorneys for taking civil

rights cases. Delaware Valley I, 478 U.S. 546, (1986).

The loadstar fee includes most, if not all, factors consti-

tuting a reasonable attorney fee. /d. at 566. The excep-

tion to this rule is a tiny one and courts should not

permit the exception to eclipse the rule. Arrade v.

Jamestown Housing Authority, 82 F.3d 1179 (1st Cir 1996);

Lipsett v. Blanco, 975 F.2d 934 (1st Cir. 1992). It is

questionable whether a district court may use a multi-

20

plier as punishment pursuant to §1988. Cooper v. Pente-

cost, 77 F.3d 829 (5th Cir. 1996).

The issue of whether fees may ever be doubled after

the case of City of Burlington v. Dague, 505 U.S. 559

1992), is an important question of federal law which

has not been but should be clarified by the Supreme

Court of the United States.

IV. The lower Court erred by calculating the fees

of the ACLU/RFP at New York rates

The lower court approval of the fee awarded to the

ACLU/RFP directly conflicts with the Sixth Circuit's

decision in Hadiz v. Johnson. 65 F.3d 932 (6th Circuit

1995). The Sixth Circuit refused to approve the hourly

rate of an out of town specialist in a case where the

record was devoid of any suggestion that any attempt

was made to retain counsel in the local market. Hourly

rates should not exceed what is necessary to encourage

competent lawyers within the relevant community to

undertake legal representation. Jd. at 536. The court

found that there was no reason to believe that out of

town counsel should receive more than local counsel.

Td.

Reasonable fees under § 1988 are calculated accord-

ing to the prevailing market rates in the relevant legal

community. Blum v. Stenson, 465 U.S. 886, 895 (1984):

Stewart v. Gates, 987 F.2d 1450, 1453 ‘9th Cir, 1993);

Hadiz v. Johnson, 65 F.3d 523 ‘6th Cir. 1995); Walker v.

21

—

U.S. Dept. of Housing & Urban Development, 99 F. 3d 761

Sth Cir. 1996). Some circuits, including the Ninth

Circuit, have made an exception where local counsel is

not available. Gates v. Deukmejian, 987 F.2d 1392, 1405

‘9th Cir. 1992). However, in the instant case, it is clear

that a local firm, AC&B was available to represent the

plaintiffs. There is no reason given why outside counsel

should have received higher hourly rates than those

awarded local counsel AC&B.

The district judge has a duty to review a fee award

as to reasonableness and base its findings on evidence

in the record even when a fee application is unopposed.

Stewart, 987 F.2d at 1453; Neft v. Vidmark, Inc. , 923 F.2d

746 (9th Cir. 1991). The district judge failed to articulate

any basis for his determination that a public interest

group should be awarded fees based on large New York

City firm rates. The award at New York rates is unrea-

sonable and exorbitant. By permitting the award to

stand, the lower court has ignored Supreme Court as

well as Ninth Circuit precedent.

It is to forestall such gorging at the ligation

trough that the Supreme Court requires district

courts to “provide a concise but clear explana-

tion of [their] reasons for |a| fee award.” Hensley

v. E'ckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933,

1941, 76 L.E. 2d 40. We have interpreted this as

requiring “something more tha{n) a bald, un-

supported amount.” 977 F.2d at 1306. Else-

22

where it's been said that the district court “has

to make a judgment...in a reasoned (though

brief) opinion-on what the case should have

cost the party who submitted the request.”

Heiar v. Crawford County, Wis, 746 F.2d 1190,

1204 (7th Cir. 1984), cert. denied. 472 U.S. 1027,

105 S.Ct. 3500, 87 L. Ed. 2d 631 1985).

Guam Society, 100 F.3d at 710 Appendix E}.

The ACLU/RFP submitted a fee request based upon

rates charged by two of the largest law firms in New

York. It did not submit any evidence of what the

ACLU/RFP normally charges in cases such as this one.

Both of these firms are ten times larger than

ACLU/RFP. CR 299 and 269 (Wm. Josephson and J.

Hall Deecls.) The government opposed the rates re-

quested by ACLU/RFP and gave support for their

Opposition in the form of an unreported decision from

the U.S. District Court for the District of Utah where

fees were awarded to the same ACLU/RFP attorneys as

appeared in the Guam case. In the case challenging the

Utah abortion act. the Judge reduced the hourly rate for

Ms. Benshoof from a claim of $335 to $155: for Ms. Pine

from a claim of $310 to an allowed rate of $125: and for

Mr. Heller, from a claimed rate of $285 to $105. Jane

Utah Women's Clinic and David Hansen, et al. y. Bangarter,

Civ. No. 91-C-345G. Memorandum Decision and Order

in re Attorneys Fees, p.17, fn. 16. App. A, Plaintiffs

Award (C.C. Utah. June 29, 1993). This case was

23

brought to the District Court's attention on remand.

That decision is the only evidence in the case of the

rates actually awarded to ACLU/RFP attorneys. These

rates are significantly lower than the fees awarded the

same attorneys in this case.

The decision of the Ninth Circuit in this case is in

direct conflict with the Supreme Court's decision in

Blum v. Stenson, 465 U.S. 886 (1984) and the Sixth

Circuit's decision in Hadiz v. Johnson, 65 F.3d 532 (6th

Cir. 1995),

CONCLUSION

For the foregoing reasons, the Government of Guam

requests the Supreme Court to grant the petition for

Certiorari to review the decision of the Ninth Circuit

Court of Appeals:

1. Approving a use of a multiplier to double fees

for factors subsumed in the loadstar fee. contrary to the

decision of this Court in City of Burlington v. Dague, 505

U.S. 112 S. Ct 2638 (1992):

2. Approving the use of a multiplier to double an

already enhanced loadstar fee of local counsel. conflict-

ing with the holdings of the Second and D.C. Circuits

which require a showing of actual difficulties in finding

counsel;

3. Approving the use of a multiplier to arrive at an

award which is punitive in nature; and

24

4. Awarding fees to out of town counsel at large

New York City rates which are higher than the prevail-

ing market rates in the relevant legal community of

Guam contrary to the decision of this Court in Blum »,

Stenson, 465 U.S. 886. (1984) and in conflict with the

Sixth Circuit in Hadiz v. Johnson, 65 F.3d 523 (6th Cir.

1995).

Dated this {Sts of August, 1997.

Respectfully submitted,

CHARLES H. TROUTMAN

Attorney General of Guam (Acting)

By: MARIA G. FITZPATRICK

Assistant Attorney General

Attorney for Petitioners