Petition for Writ of Certiorari — Regier, Secretary, Florida Department of Children & Families v. Does 1-13

941445 un . > 2004

In the :

SUPREME COURT OF THE UNITED STATES

October Term, 2004

JERRY REGIER, et al.,

Petitioners,

ve

DOES 1-13, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

CHRISTOPHER M. KISE JASON VAIL

Solicitor General Z Assistant Attorney General

Counsel of Record

Counsel for Petitioners

Office of the Attorney General

Suite PL-O1

The Capitol

Tallahassee, FL 32399

(850)414-3300

(850:488-4872 (fax)

:.

QUESTIONS PRESENTED

Whether enhancement of the lodestar amount of an

attorney’s fee award under 42 U.S.C. s. 1988 requires

specific findings based on evidence of record that 1) the

lodestar amount is unreasonable; 2) any factor relied upon

to enhance the lodestar amount is necessary to obtain a

reasonable fee; and 3) the degree of enhancement is

necessary to obtain a reasonable fee.

Whether the record supports the district court’s conclusion

that this case was so “rare” and “exceptional” as to justify

doubling the lodestar fee amount.

PARTIES TO THE PROCEEDINGS

The parties to this proceeding are:

Petitioner-defendants: Jerry Regier, Secretary of the Florida

Department of Children and Families; Mary Ellen McDonald,

District 11 administrator, Florida Department of Children and

Families; Michelle Brantley, Assistant Secretary, Florida

Department of Children and Families; and Robert Sharpe,

Medicaid Director, Florida Agency for Health Care

Administration. |

Respondent-plaintiffs: the respondents appeared

anonymously below.

TABLE OF CONTENTS

QUESTIONS PRESENTED ............00eeeeee eres

PARTIES TO THE PROCEEDINGS ..............05. i

TABLE OF CONTENTS ..........2205: ek i

TABLE OF AUTHORITIES ..............00000008: ii

OPINIONS BELOW ....... lige RE ee eee ee )

WPMIBIICTION «oo... 000scc00ccncccsccccescsees 2

STATUTORY PROVISIONS INVOLVED ...........- 2

STATEMENT OF THECASE ............0000000 0 3

REASONS FOR GRANTING THE PETITION ......... 7

il

I. The orders below conflict with decisions of this court. .

Il. The courts of appeals vary widely on the degree of

proof and the judicial findings required to justify

attorneys’ fee enhancements. .....-.--+++++>: 12

IJ. The award of fee enhancements against public bodies

according to uncertain criteria presents an important

public issue. ......-.. eee eee cece erences 15

CONCLUSION ..ncccccccccvcevccscsececcceseves 17

TABLE OF AUTHORITIES

Cases

Blum v. Stenson, 465 U.S. 886 (1984) .......-- 7,9, 10, 13

City of Burlington v. Dague, 505 U.S. 557 ee 11

Cooper v. Pentecost, 77 F.3d 829 (Sth Cir. 1996), «secs. 14

Daggitt v. UFCW, Local 304A, 245 F.3d 981 (8th Cir. 2001)

15

eee eee EREROS EEE CEP EEDM ESS FEE OO Eee

Guam Society of Obstetricians and Gynecologists v. Ada, 100

F.3d 691 (9th Cir. 1996). ....... eee cece eee erences 16

Hendrickson v. Branstad, 934 F.2d 158 (8th Cir. 1991) .. 14

ill

=

Hensley v. Eckerhart, 461 U.S. 424 (1983) .....--- 7-9, 16

Hyatt v. Apfel, 195 F.3d 188 (4th Cir. 1999) ...---+-- 14

In re Miniscribe Corp., 309 F.3d 1234 (10th Cir. 2002) . 14

In re UNR Industries, 986 F.2d 207 (7th Cir. 1993) .. 13,14

Odima v. Western Tucson Hotel, 53 F.3d 1484 (9th Cir. 1994)

ng bad URUK EEEEAE RS ORK SSS SODUGSEHEEOEORVOROSS® 13

eps ced ences sedasbeneesardeseeeenteenaes* 15

Pennsylvania v. Delaware Valley Citizens’ Council for Clean

Air, 478 U.S. 546 (1986) .....-eee seer ere ererees 10, 11

Pennsylvania v. Delaware Valley Citizens’ Counsel for Clean

Air, 483 U.S. 711 (1987) ....-- eee e reer reer r eres 11

Planned Parenthood of Central and Northern Arizona v. State

of Arizona, 789 F.2d 1348 (9th Cir. 1986) ....------ +> 13

Van Gerwen v. Guarantee Mutual Life Co., 214 F.3d 1041 (9th

Ce, BID cc cece vcencccsevccnessocvccssesencens 13

Watkins v. Fordice, 7 F.3d 453 (Sth Cir. 1993) .....---- 14

Statutes and Rules

OO UIG.C. b. 12541)... eee cccvceccncceceesseceveces 2

42 U.S.C. s. 1396a(an(8) ... creer reer errr ee erent 4

iV

dit oe Si rrrerrerecrr Te rere airrare 2

Other Authorities

Andrews, The Third Alternative: An Alternative to R ice

Consciousness and Color Blindness in Post-Slavery America,

54 Ala.L.Rev. 483 (2003) ........ceeeeeeeereececes 15

Deavel, Birmingham's Employment Discrimination War, 38

A.F.L.Rev. 197 (1994)... cccccccvccccecececcceves 15

Lamb, The Lodestar Process of Determining Attorneys’ Fees:

A Guiding Light or Black Hole?, 27 J.Leg.Pro. 203 (2003)

EPPO Ee RM PUT TTT Teer Ter eT ee Tey Perea Tae. 16

Muir, Analysis of the Valuation of Attorney Work Product

According to the Market for Claims: Reformulating the

Lodestar Method, 31 Loy.U.Chi.L.J. 599 (2000) ........ 16

In the

SUPREME COURT OF THE UNITED STATES

October Term, 2004

JERRY REGIER, et al.,

Petitioners,

v.

DOoEs 1-13, et al.,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

The petitioners, executive branch officials of the State of

Florida, respectfully petition the Court for a wnt of certiorari to

review ajudgment of the United States Court of Appeals for the

Eleventh Circuit.

OPINIONS BELOW

The court of appeals’ opinion is unreported. It is reproduced

at petitioners’ appendix A. The district court’s fee judgment is

unreported. It is reproduced at petitioners’ appendix B.

JURISDICTION

The court of appeals rendered its decision on January 16,

2004. Pet. App. A. This Court has jurisdiction under 28 U.S.C.

s. 1254(1).

STATUTORY PROVISIONS INVOLVED

Title 42 U.S. Code section 1988 states:

Proceedings in vindication of civil nghts

(a) Applicability of statutory and common law. The

jurisdiction in civil and criminal matters conferred on

the district and circuit courts by the provisions of this

Title, and of Title "CIVIL RIGHTS," and of Title

"CRIMES," for the protection of all persons in the

United States in their civil rights, and for their

vindication, shall be exercised and enforced in

conformity with the laws of the United States, so far as

such laws are suitable to carry the same into effect; but

in all cases where they are not adapted to the object, or

are deficient in the provisions necessary to furnish

suitable remedies and punish offenses against law, the

common law, as modified and changed by the

constitution and statutes of the State wherein the court

having jurisdiction of such civil or criminal cause is

held, so far as the same is not inconsistent with the

Constitution and laws of the United States, shall be

extended to and govern the said courts in the trial and

disposition of the cause, and, if it is of a criminal nature,

in the infliction of punishment on the party found guilty.

(b) Attorney's fees. In any action or proceeding to

enforce a provision of sections 1977, 1977A, 1978,

1979, 1980, and 1981 of the Revised Siatutes [42 USCS

2

§§ 1981-1983, 1985, 1986], title IX of Public Law

92-318 [20 USCS §§ 1681 et seq.], the Religious

Freedom Restoration Act of 1993, the Religious Land

Use and Institutionalized Persons Act of 2000, title VI

of the Civil Rights Act of 1964 [42 USCS §§ 2000d et

seq.], or section 40302 of the Violence Against Women

Act of 1994, 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.

(c) Expert fees. In awarding an attorney's fee under

subsection (b) in any action or proceeding to enforce a

provisior of sections 1977 or 1977A of the Revised

Statutes [42 USCS §§ 1981 or 1981a], the court, in its

discretion, may include expert fees as part of the

attorney's fee.

STATEMENT OF THE CASE

The petitioners request the Court to review an order

awarding plaintiffs in a civil rights action $649,869.50 in

attorneys’ fees. This amount was twice the lodestar. The issue

is whether the district court applied the proper standards in

enhancing an attorneys’ fee lodestar.

This action was filed in March 1992 by 13 anonymous

Medicaid-eligible individuals with developmental disabilities.

The lawsuit was an attack on waiting lists for placement in

intermediate care facilities for the developmentally disabled

(ICF/DDs). ICF/DDs are residential treatment facilities that

provide 24-hour care and services to severely disabled

3

;

:

:

individuals with developmental disabilities. Doe ]-]3 v. Bush, —

261 F.3d 1037 (11th Cir. 2001) (Does II). ICF/DDs are funded

through the joint federal-state Medicaid program. Jd. The

respondents contended that they were not being provided

ICF/DD services with “reasonable promptness,” as required by

42 U.S.C. s. 1396a(2)(8) and the Fourteenth Amendment to the

Constitution. Doe v. Chiles, 136 F.3d 709, 711 (11th Cir. 1998)

(Does I). The petitioners are officials of the Florida Department

of Children and Families and the Agency for Health Care

Administration, the two state agencies charged with

administering ICF/DDs and Medicaid.

The plaintiffs obtained a summary judgment and injunctive

relief, which was upheld on appeal. Does J. The relief they

obtained was that sought in the complaint. They later sought

contempt for alleged violations of the judgment, but the

Eleventh Circuit overturned a trial court order finding the

defendants in contempt. Does II. |

The plaintiffs moved for attorneys’ fees and costs in

September 1999, seeking fees of $339,950.50 for 1193.5 hours

of attorney time, 736.8 hours for a “Sr. Partner” at $350/hour,

107.4 hours for a “Jr. Partner” at $195/hour, and 349.3 hours

for “Associates” at $175/hour. The plaintiffs requested a 2.0

modifier, which brought their total fee request to $679,901. The

defendants filed specific, line-by-line objections to the |

requested fees and costs.

In March 1999, the plaintiffs filed a supplemental fees and

costs motion, seeking additional compensation for 183 hours of |

trial court work. Total fees in this request came to $94,650, an

amount twice the proposed lodestar.

Finally, the plaintiffs sought fees for work on the merits

appeal. They claimed $85,304.50 ($170,325 with a 2.0

multiplier), reflecting 311.5 hours -- 158.75 hours for the “Sr.

Partner” at $350/hour, 152.10 hours for the “Jr. Partner” at

$195/hour, and .5 hours for “Associates” at $175/hour. Again,

the defendants fijed detailed, line-by-line objections, both to the

supplemental request and the appellate fees and costs.

4

Shortly after the court of appeals issued the mandate on the -

contempt appeal, the trial court entered an initial order

awarding fees and costs. The court awarded fees of $430,156.25

on the initial and supplemental fee motions. In doing so it

applied a 2.0 multiplier, denying every single defense objection.

However, the court awarded no costs and said nothing about

appellate fees.

The plaintiffs’ objected to the order and moved for

clarification. The district court then entered the order on review.

Pet.App. 2. First, the trial court reduced houriy rates for work

in the trial court from those requested by the plaintiffs.

Although the plaintiffs asked $350/hour for Weinger, $195/hour

for Tetzeli, and $175/hour for associates, the trial court awarded

$250, $175, and $125 per hour respectively. The court provided

no explanation for this reduction. Pet.App. B 7, 9-11.

Second, as to the number of hours worked, the trial court

rejected the defendants’ line-by-line objections, stating: “[T]he

Ccurt finds the Defendant’s assertions to be insufficient as a

basis for a finding that the work was reasonable or to defeat the

sworn assertions by the attorneys that the hours were

necessary.” Pet.App. B 8.

The court applied the reduced hourly rates to the plaintiffs’

hourly breakdown to reach a sub-lodestar for each billing

lawyer. It then added the sub-lodestars to get a composite

figure, which it enhanced by a factor of 2. Id. at 9-11.

The trial court justified awarding a 2.0 multiplier primarily

“because this is a rare and exceptional case where an upward

adjustment of the lodestar is appropriate due to exceptional

success” and “groundbreaking results.” Pet.App. B 9. The court

cited a number of other reasons. Altogether, the district court’s

reasons for awarding an enhancement fell into six general

categories: (1) the result obtained was excellent, (2) the case

was novel, (3) it was complex, (4) it was lengthy, (5) the

plaintiffs’ attorneys were skillful, and (6) other counsel was

unavailable and the case was undesirable. Pet.App. B at 8-9.

ee

The district court did not require the respondents to —

demonstrate that the lodestar yielded an unreasonable fee, nor

did it find the lodestar amount unreasonable. Further, the court

failed to find that the factors used to enhance the lodestar were

not already included in it or that an enhancement was necessary

to obtain a reasonable fee.

The trial court made no appellate fee lodestar determination.

It failed to fix hourly rates for appellate work or determine the

reasonable number of hours expended. Pet. App. 11.

Nonetheless, it awarded $85,304.50 in appellate fees. This

number happens to be the amount of fees requested without

application of a 2.0 multiplier. Pet.App. B 11.

Altogether, the trial court awarded fees as follows:

Type Hours Rate Lodestar With 2.0

Multiplier

Initial Fee Petition

Sr. Partner 736.8 $250.00 | $184,200.00 $368,400.00

Jr. Partner 107.4 $175.00 | $18,795.00 $37,590.00

Associate 349.3 $125.00 | $43,662.50 $87,325.00

Total 1193.5 $246,657.50 $493,315.00

Supplemental Fee Petition

Sr. Partner 81.6 $250.00 | $20,400.00 $40,800.00

Jr. Partner 51 $175.00 $8,925.00 $17,850.00

Associate 50.4 $125.00 $6,300.00 $12,600.00

Total 183 $35,625.00 $71,250.00

Fees on the Merits Appeal

Sr. Partner 2? 2?

Jr. Partner 2? 2?

With 2.0

Multiplier

Type Hours Rate Lodestar

Associate 79 vad

Total Appeliate Fees $85,304.50

Total Lodestar | $367,587.00

Total Fee Award $649,869.50

The circuit court affirmed without opinion. Pet.App. A. (It

is nut unusual for a circuit court to dispose of an attorneys’ fee

case without a written opinion. In fact, this court has granted

review in two such cases, Hensley v. Eckerhart, 461 U:S. 424,

429 (1983); and Blum v. Stenson, 465 U.S. 886, 889 (1984)).

REASONS FOR GRANTING THE PETITION

This Court has laid down specific guidelines for awarding

enhancements to the attorneys’ fee lodestar. Despite this

specific guidance, the treatment of fee enhancements by the

courts of appeals has not been consistent either with this

Court’s directives or with each other. Lodestar enhancements

have been capriciously awarded by several courts of appeals in

a variety of circumstances without paying heed to this Court’s

instructions for the need for specific facts in the record that the

lodestar amount yield an unreasonable fee or that a given

enhancement is necessary to obtain a reasonable fee (as

happened in this case). Other courts of appeals, on the other

hand, have followed the Court’s instructions. |

The substantial amounts of money involved in attorneys’

fee litigation — multiplied by enhancements — threaten the

fiscal integrity of public programs, because unreasonably high

fee awards can result in less money available for public

services.

Because the courts of appeal use inconsistent standards and -

methods in determining fee enhancements, such awards are

capricious and inconsistent. The failure to apply clear, objective

standards to such awards encourages the parties to litigate fee

disputes. This fee litigation unnecessarily increases the

judiciary’s workload. What should be a process that is relatively

easy to administer instead often becomes a “second major

litigation.”

This Court should revisit the question of fee enhancements

once more to bring order, objectivity, and regularity to a process

that is too often chaotic and unreasonable.

I. THE ORDERS BELOW CONFLICT WITH DECISIONS

OF THIS COURT.

This Court’s decisions leave no doubt that it is the trulyrare

case that may command a fee multiplier. The lodestar is

presumed to yield a reasonable fee. The fee petitioner has the

burden of demonstrating the lodestar fee is unreasonable and

enhancement is necessary to reach a reasonable fee. Such a

showing must be supported by specific evidence in the record,

and the courts must make specific, detailed findings why the

lodestar is unreasonable and why the requested enhancements

are necessary. The decisions below fail to meet the standards

this Court has set for enhancement of the lodestar amount.

This Court’s body of law dealing with attorneys’ fee

enhancements or “multipliers” is well developed. The first case

to deal with the topic is Hensley v. Eckerhart, 461 U.S. 424

(1983). Hensley is a “partial success” case, meaning that the

plaintiffs succeeded on some, but not all, of their claims. When

the plaintiffs petitioned for fees, they requested an enhancement

ranging from 30-50 percent. The district court refused the

enhancement. The issue was how to calculate an appropriate,

reasonable fee when an attorney’s work in the case may not

have contributed to the result. This Court focused on the

relationship that existed between the “results obtained” — the

8

degree of success achieved in the litigation — and an award of ©

attorneys’ fees. Jd. at 432. The district court’s paramount task

is to determine a reasonable fee. Jd. at 433. The “most useful

starting point” for determining the reasonable fee is to calculate

the product of “reasonable hours” times “‘a reasonably hourly

rate.” Jd. “This calculation provides an objective basis on which

to make an initial estimate of the value of an attorney’s

services.” Jd. This product is the “lodestar.”

Determination of lodestar, however, “does not end the

inquiry.” /d. at 434. Other considerations “may lead the district

court to adjust the fee upward or downward.” Id. In a partial

success case “the product of hours reasonably expended on the

litigation as a whole times a reasonable hourly rate may be an

excessive amount.” Jd. at 436. Thus, the lodestar may yield an

unreasonable fee.

The Court elaborated on the Hensley principles in Blum v.

Stenson, 465 U.S. 886 (1984). Blum reaffirmed that the first

step in an attorneys’ fee analysis is determination of the

lodestar. Jd. at 888. While this Court termed the lodestar an

“estimate” that might be subject to modification “as necessary,”

id., it emphasized that the lodestar was far more than a “rough

guess.” Id. at 897. In fact, the Court held that the lodestar was

“presumed to be the reasonable fee.” Id.

Because the lodestar is presumed to be the reasonable fee,

the Blum court went on to discuss when modifications —

upward or downward — are justified to that figure. The district

court had enhanced the lodestar 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.” Jd. at 891. But this Court rejected these

justifications for enhancement one after another on the ground

that they are all subsumed into either the hourly rate or the

number of hours worked. Jd. at 898-900. Thus, novelty,

complexity of the issues, and the skill of counsel “should be

reflected in the reasonableness of the hourly rates.” Jd. at 898.

The quality of representation also is reflected in the hourly rate.

9

Id. at 899. The benefit to the class as well “generally will be —

subsumed within other factors used to calculate a reasonable fee

[so] it normally should not provide an independent basis for

increasing a fee award.” Jd. at 900. Moreover, the Court

observed that the district court had failed to “explain... exactly

how this determination affected the fee award.” Jd. at 899. Last,

the Court concluded that the plaintiffs had failed to show by

specific evidence in the record that the contingency of the risk

of loss justified the fee enhancement. /d. at 901.

The Blum court made clear that the burden of demonstrating

the need for an enhancement lay with the fee petitioner who

must offer “evidence that enhancement was necessary to

provide fair and reasonable compensation.” /d. at 901. Like no

other case from this Court, Blum sets the standard: the

presumptive reasonableness of the lodestar, the burden to

demonstrate how the lodestar is unreasonable and why a

particular enhancement is necessary to obtain a reasonable fee.

Blum also imposes an obligation on the district court to make

specific findings about the inadequacy of the lodestar and the

need for a particular enhancement.

The Blum court also rejected the practice of routinely

awarding a fee enhancement because of “results obtained.” This

factor “generally will be subsumed within other factors used to

calculate a reasonable fee.” Jd. at 900. The number of people

benefitted is also not a significant factor in determining the fee

award. /d. at 900 n. 16.

Blum is not the last word on enhancements. Because of

recurring confusion among the courts of appeals, this Court has

revisited the question of when enhancements are appropriate. In

Pennsylvania v. Delaware Valley Citizens’ Council for Clean

Air, 478 U.S. 546 (1986), the Court reaffirmed that the lodestar

is presumptively reasonable. Jd. at 564. This presumption is a

strong one. /d. at 565. The Court rejected the fee applicant’s

claim that the quality of their attorneys’ representation by itself

supported a fee enhancement: “the lodestar figure includes

most, if not all, of the relevant factors constituting a

10

etenrteereeneeesiniaiitsiaiisiaii ne

‘reasonable’ attorney’s fee... .” Jd. at 566. Because attorney

skill is already accounted for in the lodestar, a fee enhancement

for that reason is “double counting.” Jd. at 566. While the

Court did not rule out the possibility of upward enhancements,

it emphasized that “such modifications are proper only in

certain ‘rare’ and ‘exceptional’ cases, supported by both

‘specific evidence’ in the record and detailed findings by the

lower courts.” Jd. at 565.

A year later, the Delaware Valley attorneys’ fee dispute

returned to this Court for consideration of whether a fee could

be enhanced because of contingency risk, Delaware Valley II,

Pennsylvania v. Delaware Valley Citizens’ Counsel for Clean

Air, 483 U.S. 711 (1987). A plurality of the Court held that it

could not, as this factor was subsumed by the lodestar. Jd. at

727-731. The underlying teachings of Blum guided the thinking

of the plurality. The Court reemphasized that the presumptive

reasonableness of the lodestar limited enhancements to

exceptional or rare cases “where the need and justification for

such enhancement are readily apparent and are supported by

evidence in the record and specific findings by the courts.” Jd.

at 728. Moreover, as a general rule, any enhancement should

not exceed one-third. Jd. at 720. “Any additional enhancement

would require the most exacting justification.” Jd.

The notion that contingency risk does not support an

enhancement gained majority support in City of Burlington v.

Dague, 505 U.S. 557 (1992). Citing Blum, this Court held that

the fee applicant has the burden of showing that “‘such an

adjustment is necessary to the determination of a reasonable

fee.’” Id. at 562 (emphasis the Court’s).

In sum, the Court’s decisions make it clear that the lodestar

amount is a presumptively reasonable fee. The fee applicant can

overcome this presumption only with specific evidence showing

that the lodestar amount is unreasonable. The applicant must

demonstrate that the requested basis for enhancement is not

otherwise subsumed by the lodestar and is necessary to make

the fee reasonable. The district and circuit courts must make

1]

specific findings on these factual matters. Only then does a case

become sufficiently “rare” or “exceptional” as to warrant a fee

enhancement. Finally, if the court believes that an enhancement

of more than one-third the lodestar is warranted, the “most

exacting justifications” are required, which in tur require

specific judicial fact finding.

Here, the district court required far less of the fee applicant

than this Court demands. It failed to require the applicant to

show that the lodestar resulted in an unreasonably low fee or to

make findings to that effect. It failed to require the applicant to

demonstrate why enhancement factors were not already

subsumed in the lodestar and why enhancement was necessary

to obtain a reasonable fee. It further failed to make the specific

findings this Court requires. The district court failed to

articulate why the amount awarded constituted a reasonable fee.

Moreover, the multiplier selected to reach the amount awarded

was far higher than at least a plurality of this Court has been

willing to accept without detailed justification. Finally, the

district court enhanced the lodestar for reasons that this court

has said are generally subsumed by the lodestar.

In order to ensure that this Court’s policy of sharply limiting

fee enhancements and requiring strict proof of their need is

heeded by the lower courts, the Court should grant the writ and

spell out in precise terms the precise analytical steps required

before granting a fee enhancement.

II. THE COURTS OF APPEALS VARY WIDELY ON THE

DEGREE OF PROOF AND THE JUDICIAL FINDINGS

REQUIRED TO JUSTIFY ATTORNEYS’ FEE

ENHANCEMENTS.

The district court failed to determine that the lodestar was

inadequate or to justify the enhancement according to the

standards set by this Court. The circuit court affirmed without

12

opinion. The effect of such an affirmance was to adopt the

opinion of the trial court as that of the circuit court.

Other circuits engage in much more rigorous review. In

Planned Parenthood of Central and Northern Arizona v. State

of Arizona, 789 F.2d 1348 (9th Cir. 1986), the district court

awarded a fee multiplier for the plaintiffs’ degree of success in

the lawsuit and the contingency of the recovery. Jd. at 1353.

Guided by this Court’s opinion in Blum v. Stenson, the Ninth

Circuit panel rejected the contention that success alone was

enough to support a fee enhancement. /d. Success is subsumed

by the lodestar. Jd. “Many clients with reasonable bargaining

power would insist upon paying no more. We do not think the

State of Arizona should be required to shoulder a greater

burden.” Jd. The court rejected the claim that risk contingency

warranted a multiplier in large part because “there is no

evidence in the record that the representation actually posed a

substantial risk to the law firm’s business or that any risk

presented was not adequately taken into consideration in setting

the hourly rate.” Jd. at 1354. The court said that Blum precluded

the use of a multiplier “unless the successful plaintiff has

demonstrated that the lodestar amount does not represent a fully

compensatory fee. The plaintiffs in this case have made no such

showing. . .” Jd.

The Ninth Circuit reaffirmed these principles in Van

Gerwen v. Guarantee Mutual Life Co., 214 F.3d 1041, 1046-

1047 (9th Cir. 2000) (vacation of downward adjustment of .75

and remand when district court failed to find that the lodestar

amount was unreasonable or explain why the hourly rate did not

fully account for the quality of representation). See also Odima

y. Western Tucson Hotel, 53 F.3d 1484 (9th Cir. 1994) (error to

award 50 percent enhancement when there was insufficient

evidence in the record that the lodestar failed to yield a

reasonable fee).

The Seventh Circuit’s handling of enhancements is also at

odds with the analysis in this case. In Jn re UNR Industries, 986

F.2d 207 (7th Cir. 1993), the question was payment of a

13

bankruptcy trustee’s fees. The circuit court held that a lodestar -

approach was preferable to acommon fund approach often used

in bankruptcy matters, and that no enhancement was warranted.

The court said, “such enhancements are not proper when the

compensation awarded is reasonable.” /d. at 211.

The Fifth Circuit’s approach mirrors that used in the Ninth

and Seventh circuits. In Cooper v. Pentecost, 77 F.3d 829 (Sth

Cir. 1996), the plaintiffs sought a $5 enhancement in their

hourly rate and then a 2.0 enhancement as punishment for

failure to comply with a consent decree. The circuit court held

that no enhancement was warranted, relying on the principle

that it “is appropriate for a court to enhance the lodestar amount

only in certain exceptional cases where the prevailing party

demonstrates that the enhancement is necessary to make the

lodestar reasonable.” Jd. at 833. The Cooper district court found

it had no authority to enhance the lodestar and the circuit court

affirmed. Jd. at 834. See also Watkins v. Fordice, 7 F.3d 453,

459 (Sth Cir. 1993).

The Eighth Circuit in Hendrickson v. Branstad, 934 F.2d

158 (8th Cir. 1991), also rejected a 25 percent enhancement

because of the fee applicant’s failure to demonstrate factually

why “an enhancement based on exceptional results was

necessary to provide counsel with a reasonable fee.” Jd. at 162.

Unlike the courts below in this case, the Eighth Circuit

emphasized that enhancements “must be supported by specific

evidence in the record and detailed findings by the lower court.”

Id.

Other circuits have ignored or skirted the requirement fcr

specific facts in the record to justify an enhancement, for a

finding that the lodestar is inadequate and for findings as to why

a particular factor would make for an enhanced, reasonabie fee.

See Hyatt v. Apfel, 195 F.3d 188, 191-192 (4th Cir. 1999) (1.33

multiplier upheld without required findings); Jn re Miniscribe

Corp., 309 F.3d 1234, 1246 (10th Cir. 2002) (2.57 multiplier

approved without findings).

os

In Paschal v. Flagstar Bank, FSB, 297 F.3d 431 (6th Cir. -

2002), the circuit court approved a 50 percent enhancement

where the district court had concluded only that the hourly rate

awarded was “modest.” The rate was below market, which

could lead one to conclude the lodestar was unreasonable. But

the district and circuit courts never went so far as to conclude

the lodestar was inadequate. Nor did the circuit court require

the district court to analyze why and how a given factor

produced a reasonable fee.

The Eighth Circuit also approved a fee enhancement when

the lodestar was “modest” without any specific evidence or

finding that the amount was unreasonable. Daggitt v. UFCW,

Local 304A, 245 F.3d 981, 990 (8th Cir. 200i) (25 percent

enhancement approved).

In sum, there is little uniformity — and much caprice —

both in the courts’ analytical approach and in the amount of

modifiers awarded. They can range from 25 percent to more

than 2.57 times without any meaningful explanation of how or

why the amount of the enhancement is necessary to achieve a

reasonable fee. The courts of appeals’ inconsistent approaches

should not be allowed to continue.

Ill. THE AWARD OF FEE ENHANCEMENTS

AGAINST PUBLIC BODIES ACCORDING TO

UNCERTAIN CRITERIA PRESENTS AN

IMPORTANT PUBLIC ISSUE.

The impact of attorneys’ fee awards on public bocies is no

trivial matter. The amounts awarded can be substantial, ranging

into the millions of dollars per case. See e.g., Deavel,

Birmingham’s Employment Discrimination War, 38 A.F.L.Rev.

197 (1994) ($2.5 million fee in Title VII case). In fact, fee

awards — granted by Congress with the best of intentions to

prevailing plaintiffs in fee shifting cases — can actually reduce

funds available for public services. See e.g., Andrews, The

15

Third Alternative: An Alternative to Race Consciousness and .

Color Blindness in Post-Slavery America, 54 Ala.L.Rev. 483,

526 (2003). Thus, improperly imposed fee enhancements,

which substantially inflate fee awards, threaten the financial

stability of public programs and services and could result in

diminished public services for all.

The fee lodestar has been criticized for producing

inconsistent results which have “damaged the objectivity and

predictability of fee awards.” Lamb, The Lodestar Process of

Determining Attorneys’ Fees: A Guiding Light or Black Hole?,

27 J.Leg.Pro. 203, 207 (2003). However, this “problem is also

exacerbated by the inconsistent use of multipliers. These

multipliers range anywhere from Zero to four, producing wildly

varying results.” Jd.

One factor relied on by the district court in this case to

justify the multiplier, that other counsel were unavailable and

the plaintiffs were unpopular, necessitates inquiry into

community attitudes and local supply-and-demand of counsei.

Substantial differences as to those facts are nearly inevitable,

coloring the outcome and potentially producing bitter divisions.

See e.g., majority opinion and dissent in Guam Society of

Obstetricians and Gynecologists v. Ada, 100 F.3d 691 (9th Cir.

1996).

The other factors relied on by the district court in this case

to enhance the fee will never produce consistent resuits. The

degree of success, the novelty of the issues, the complexity of

the case, and the skill of the plaintiffs’ lawyer can be used to

justify any outcome and are not appropriate when a court

awards compensation for every hour reasonably spent on the

case. The failure of courts to apply uniform fee standards

frustrates this Court’s objective of preventing fee disputes from

exploding into complex, time-consuming secondary litigation.

Hensley, 461 U.S. at 437 (“A request for attorney’s fees should

not result in a second major litigation.”); Muir, Analysis of the

Valuation of Attorney Work Product According to the Market

for Claims: Reformulating the Lodestar Method, 31

16

Loy.U.Chi.L.J. 599, 615 (2000) (‘federal courts do not apply .

the lodestar method uniformly. The resulting chaotic state of

law fosters an excessive amount of litigation concerning the

proper fee amount.”).

Capriciously imposed fee enhancements endanger both the

public treasury and public confidence in the judicial process. If

enhancements are justified at all, they must be based on clearly

articulated, not arbitrary, standards and on facts specifically set

out in the record.

CONCLUSION

For these reasons, the Court should grant the petition.

RESPECTFULLY SUBMITTED,

CHARLES J. CRIST, JP.

ATTORNEY GENERAL

CHRISTOPHER M. KISE

SOLICITOR GENERAL

Counsel of Record

JASON VAIL

Assistant Attorney General

Office of the Attorney General

Suite PL-01

The Capitol

Tallahassee, FL 32399

(850)414-3300

(850)488-4872 (fax)

Counsel for Petitioners

Dated April 14, 2004

17

No.

In the

SUPREME COURT OF THE UNITED STATES

October Term, 2004

JERRY REGIER, et al.,

Petitioners,

Vv.

DOES 1-13, et al.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE ELEVENTH CIRCUIT

PETITIONERS’ APPENDIX

CHARLES J. CRIST, JR.

ATTORNEY GENERAL

CHRISTUPHER M. KISE JASON VAIL

Solicitor General Assistant Attorney General

Counsel of Record

Counsel for Petitioners

Office of the Attorney General

Suite PL-01

The Capitol

Tallahassee, FL 32399

(850)414-3300

(850)488-4872 (fax)

TABLE OF CONTENTS

EN, pico cccccccvevcenvesestbececsesnens l

0 rere ee ee 5

APPENDIX A

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 03-12117

D.C. Docket No. 92-00589-CV-ASG

JOHN/JANE DOE, 1-13 by and

through Mr/Mrs. Doe Sr. No.’s

1-13 as natural guardians on behalf of

John/Jane Doe 1-13 and on behalf of those

similarly situated,

FLORIDA ASSOCIATION OF

REHABILITATION FACILITIES

INCORPORATED, a Not-for-Profit

association,

UNITED CEREBRAL PALSEY OF

FLORIDA, INCORPORATED, a Florida

Not-for-Profit Corporation,

Plaintiffs-Appellees

versus

JEB BUSH, in his official capacity

as Governor of the State of Flonda

]

ROBERT WILLIAMS, individually

and in his official capacity as Secretary

of the Department of Health and Rehabilitative

Services of the State of Florida,

GARY CLARKE, individually and

in his official capacity as Assistant

Secretary for Medicaid, Department of

Health & Rehabilitative Services

of the State of Florida,

CHARLES KIMBER, Assistant Secretary

of Developmental Services

SECRETARY OF HEALTH AND HUMAN

SERVICES, Edward A. Feaver,

in his official capacity,

Defendants-Appellants,

RICHARD LEPORE, in his

official capacity as Assistant

Secretary for Developmental Services

of the Department of Health &

Rehabilitative Services, State of Florida

Defendant,

BRETT CRAMER, by his father

and next frend, Cyrus Cramer,

DANTON DAVIS SMITH, by his legal

guardian Marion Smith,

ADVOCACY CENTER FOR PERSONS

WITH DISABILITIES, INC.

Consolidated Plaintiffs.

Appeal from the United States District Court

for the Southern District of Florida

(January 16, 2004)

Before WILSON and KRAVITCH, Circuit Judges, and

GOLDBERG*, Judge.

*Honorable Richard W. Goldberg, United States Court of

International Trade, sitting by designation.

PER CURIAM:

AFFIRMED. See 11" Cir. R. 36-1.

'11" Circuit R. 36.1 provides:

When the court determines that any of the following

circumstances exist:

(a) judgment of the district court is based on findings

of fact that are not clearly erroneous;

(b) the evidence in support of a jury verdict is

sufficient;

(c) the order of an administrative agency is supported

by substantial evidence on the record as a whole;

(d) summary judgment, directed verdict, or judgment

on the pleadings is supported by the record,

(e) judgment has been entered without a reversible

error of law;

and an opinion would have no precedential value, the

3

judgment or orders, de affirmed or enforced

without opinion.

APPENDIX B

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

JOHN/JANE DOE 1-13 by and through

M./Mrs. Doe Sr. No’s1-13 as natural

guardians on behalf of John/Jane Doe 1-13

and on behalf of those similarly situated,

FLORIDA ASSOCIATION OF

REHABILITATION FACILITIES

INCORPORATED, a Not-for-Profit

association, UNITED CEREBRAL PALSY

OF FLORIDA, INCORPORATED, a

Florida Not-for-Profit Corporation,

Plaintiffs,

VS. Case No. 92-589-CIV-FERGUSON

JEB BUSH, in his official capacity as

Governor of the State of Florida, JERRY

REGIER, in his official capacity as

Secretary of the Department of Children and

Family Services, et al.

Defendants.

THIS CAUSE is before the Court on the Plaintiffs’ Motion .

for Attorneys’ Fees and Costs [D.E. 452], Plaintiffs’

Supplemental Claim for Attorneys’ Fees and Costs [D.E. 537]

and Plaintiffs’ Motion to Clanfy or for Re-Hearing and/or

Relief from Order and/or Judgment on Attorneys’ Fees and

Costs [D.E. 617].

Factual Background

This litigation commenced ten years ago as the first in a

series of lawsuits on behalf of developmentally disabied

individuals. In 1996 a judgment was entered for the Plaintiffs

ordering state officials to provide institutional care for eligible

applicants. That judgment was affirmed. See Doe v. Chiles, 136

F.3rd 709 (11" Cir. 1998). Several years later the Plaintiffs

filed a motion for contempt alleging that the Defendants had not

placed the Plaintiffs in intermediate health care facilities as

ordered and had not taken steps to comply with the final

judgment. Indeed in the course of the litigation some of the

Plaintiffs died. After a three day show cause hearing this Court

held the Defendants in contempt by an order entered on October

7, 1999 and fined them $10,000 a day until commencement of

acts showing compliance. The Defendants appealed.

In August, 2001 the Court of Appeals reversed the contempt

order holding that the original injunction was too lacking in

specificity and remanded for further proceedings. At a status

conference held on January 25, 2002 counsel for the Plaintiffs

answered in the affirmative when questioned whether he was

abandoning the contempt motion. Obviously the Plaintiffs are

content, for now, that the Defendants will comply with the

judgment. This Court then entered an Order on February 7,

2002 on Plaintiffs’ Motion for Attorneys’ Fees and Costs, the

order being reconsidered here.

Discussion

Having duly considered the motions, pertinent portions of

the record it is ORDERED AND ADJUDGED that the Order

6

on Plaintiffs’ Motions for Attorneys’ Fees and Costs[D.E. 616] .

dated February 7, 2002 is VACATED.

THE FIRST APPLICATION FOR FEES

The Lodestar Amount

To determine an award of attorney’s fees the Court must

multiply the number of hours reasonably expended by a

reasonable hourly rate. A reasonable hourly rate is determined

by “the prevailing market rate in the relevant legal community

for similar services by lawyers of reasonably comparable skills,

experience, and reputation.” Norman v. Housing Auth., 836

F.2d 1292, 1299 (11™ Cir. 1988) (citing Blum v. Stenson, 465

U.S. 886 (1984)).

The plaintiffs’ senior attorney, Steven M. Weinger

. (“Weinger”), has submitted his affidavit, the affidavits of other

attorneys and other supporting documentation in support of an

hourly fee. Weinger contends that he should be paid at the

hourly rate of $350.90, that the junior partner should be paid at

the hourly rate of $195.00 and that the other associates should

be paid at the hourly rate of $175.00. Defendant contends that

the Plaintiffs’ hourly rate are excessive and suggests an hourly

rate range of $125.00 to $250.00; however in 1992 Defendant’s

counsel stated that they had “little doubt that a court would

award Mr. Weinger, based on his experience, his usual fee of

$250.00 if this matter is litigated.”

To deterinine the hours reasonably expended the Court must

exclude hours that are “unreasonable to bill a client and

therefore to one’s adversary irrespective of the skill, reputation

or experience or counsel.” /d. (citations omitted). The Court

must also exclude “excessive, redundant or otherwise

unnecessary” hours. /d. (citations omitted). Nevertheless, a .

“court cannot piecemeal deduct hours expended, without some

indication that the work was unreasonable.” Allen v. Freeman,

694 F. Supo 1554, 1555 (S.D. Fla. 1988) (citing, Johnson v.

University Coilege of the University of Alabama in

Birmingham, 706 F.2d 1205, 1207 (1 1" Cir. 1983).

Defendant challenges the hours the Plaintifi claims to have .

expended contend'ng that (1) the fee application is inadequately

documented (2) the billing contains impermissible miultiple

listings under a single time entry and (3) the billing repeats

identical activities without explaining differences between what

was accomplished for each listing. The Defendant’s challenge

to the reliability of Plaintiffs’ billing records are buttressed by

line-by-line objections charts specifically disputing many time

and cost entries. The Defendant characterizes the !temized

billing records as demonstrating “insufficient detail,”

“lumping,” “duplicative,” and “excessive [as to the] amount of

time spent on task.” Having reviewed the objection charts, the

Court finds the Defendant’s assertions to be insufficient as the

- basis for a finding that the work was unreasonable or to defeat

the sworn assertions by the attorneys that the hours were

necessary. In the application for fees it is claimed that the total

amount of hours Plaintiffs’ attorneys’ expended was 1376.5.

This is a relatively low number considering that plaintiffs’

attorneys accrued these hours pursuing complex litigation over

a ten (10) year period.

Adjustment of the Lodestar

The Court is enhancing the lodestar fees for both the motion

for attorneys’ fees and the supplemental claim for attorneys’

fees by a multiplier of a 2.0 because this is a rare and

exceptional case where an upward adjustment of the lodestar is

appropriate due to exceptional success. Blum v. Stenson, 465

U.S. 886, 898-99 (1984) (recognizing an enhanced award of

attorney’s fees in cases of exceptional success); Hensley v.

Eckerhart, 461 U.S. 424, 435 (1983) (“in some cases of

exceptional success an enhanced award may be justified’’)’

Loranger v. Stierheim, 10 F.3d 776, 783 (1994) (declining te

decide whether the case was a “rare and exceptional case where

an upward adjustment of the lodestar is called for because of

exceptional success”); Allen v. Freeman, 694 F. Supp. 1554,

1556 (1988) (couri found enhancement of the loadstar amount

appropriate because the results of the litigation were

8

exceptional). In enhancing the lodestar fee by a multiplier of

2.0 the Court has considered the complexity and novelty of the

issues presented, the fact that fee attorneys have the ability or

desire to represent plaintiffs of this type, the length of the

litigation, and that the hours and time expended were taxing to

counsel’s small firm. The class of Plaintiffs in this case were

developmentally disabled (i.e., mentally retarded) individuals

who were claiming that the state acted unreasonably in denying

or delaying the Plaintiffs access to immediate care facilities in

violation of section 1396a(a)(8) and the Fifth and Fourteenth

Amendments to the United States Constitution. The case was

without significant precedent and the expert witnesses were

outstanding in preparation for the hearings and in substantive

knowledge of the- highly specialized subject matter.

Additionally, counsel’s small law firm (approximately seven (7)

members) was primarily responsible for the litigation and spent

a decade representing these Plaintiffs in this hotly contested

lawsuit.

Not only has the Couit considered the above factors in

enhancing the lodestar fee but has also considered the

exceptional success and groundbreaking results achieved by the

Plaintiffs in this case. In 1996 a judgment was entered for the

Plaintiffs ordering state officials to provide institutional care for

eligible applicants, some of whom had been waiting for many

years without proper care. That judgment was affirmed on

appeal by the Eleventt Circuit Court of Appeals in an opinion

which painstakingly established the law to govern this case as

well as several related cases which followed. See Loe v.

Chiles, 136 F.3rd 709 (11" Cir. 1998).

Accordingly, the fee, including the lodestar and multiplier

is calculated as follows:

TYPE HOURS | RATE LODESTAR | 2.0X

MULTIPLIER

Sr. 736.8 $250.00 | $184.200.00 $368,400.00

Partner

9

Jr. Partner | 107.4 $175.00 | $18,795.00 $37,590.00 a

Associate | 349.3 $125.00 | $43,662.50 $87,325.00

S

TOTAL 1193.5 $246,657.50 | $493,315.00

It is further ORDERED AND ADJUDGED that Plaintiffs’

Motion for Attorneys’ Fees and Costs {D.E. 452] is

GRANTED IN PART AND DENIED IN PART. Plaintiffs

are awarded fees on the first application in the amount of

$493,315.00.

SUPPLEMENTAL CLAIM FOR FEES

The Lodestar Amount

The Defendant has filed objections to Plaintiff

Supplemental Claim for Attorneys’ Fees and Costs similar to

those filed for the initial motion for attorneys’ fees and costs.

Again, the Defendant has included an itemized chart detailing

objections to the hours billed using the same language as in the

previous objections. The Court finds Defendant’s assertions to

be insufficient to defeat a finding that the work was reasonable

or to defeat the sworn assertions by the attorneys that the hours

were necessary.

The fee, including the lodestar and multiplier is calculated

as follows:

TYPE HOURS ; RATE LODESTAR | 2.0X

MULTIPLIER

Sr. 81.60 $250.00 | $20,400.00 $40,800.00

Partner

Jr. Partner | 51.00 $175.00 | $8,925.00 $17,850.00

Associate | 50.40 $125.00 | $6,300.00 $12,600.00

S

TOTAL 183.00 $35,625.00 $71,250.00

10

itis further ORDERED AND ADJUDGED that Plaintiffs’ -

Supplemental Claim for Attorneys’ Fees and Costs [D.E. 537]

is GRANTED IN PART AND DENIED IN PART.

Accordi.gly, Plaintiffs are awarded additional fees in the

amount of $71,250.00

APPLICATION FOR APPELLATE FEES AND COSTS

In addition to the attorneys’ fees requested previously, the

Plaintiff has requested litigation costs and appellate fees and

costs pursuant to the Eleventh Circuit Court of Appeals May

19, 1998 Mandate. Having reviewed the Order of the Court of

Appeals, considered the motion, response, reply and heard the

parties’ oral argument, the Court awards $85,304.50 for

Plaintiffs’ appellate fees and cosis.

Finally, the Plaintiff requests additional litigation costs in

the amount of $27,091.61 for further proceedings in this Court.

Defendants have filed another itemized chart detailing

objections to the costs portion using the same language as in the

previous objection that there is primarily “no showing of

necessity.” Having reviewed the application, the costs

objection chart and memoranda of law, the objections are

overruled. The Plaintiffs’ are awarded additiunal litigation

costs in the amount of $27,091.61.

Conclusion

It is further ORDERED AND ADJUDGED that the

Plaintiffs’ Motion to Clarify or for Rehearing and/or Relief

from Order and/or Judgment on Attorneys’ Fees and Costs

[D.E. 617] is GRANTED IN PART AND DENIED IN

PART.

The total amount of fees and costs awarded the Plaintiffs

pursuant to the motions is $676,961.11.

DONE AND ORDERED in Chambers at Ft. Lauderdale,

Florida, this 15" day of March, 2003.

11

_s/

WILKIE D. FERGUSON, JR.

UNITED STATES DISTRICT JUDGE

copies provided:

Steven M. Weinger, Esq.

W. Eugene Gandy, Jr., Esq.

Chesterfield smith, Jr., Esq.

Howard Talenfeld, Esq.

Jeffrey Ryner, Esq.

Stephanie Daniels, Esq., Esq.

12