If Georgia Attorney General Thurbert E. Baker wants to continue fighting an order requiring Georgia to pay more than $10.5 million to attorneys who challenged the state's foster care system, he can thank Judge Edward E. Carnes of the 11th U.S. Circuit Court of Appeals for doing some of the work to get the U.S. Supreme Court to take the case.
Carnes, who in July compared the civil rights lawyers seeking the fees to a greedy John D. Rockefeller, was one of three 11th Circuit judges who last week dissented from that court's decision not to revisit its precedent on when civil rights lawyers should get bonuses for a job well done.
In his dissent, Carnes argued that "the Supreme Court needs to tell those of us on the lower courts" how to decide such fee questions "because the point has not gotten across."
He also included the appropriate Supreme Court rule on reasons the court takes cert and the legal question Georgia lawyers could use in a petition for certiorari.
Judge Charles R. Wilson, in explaining why the full 11th Circuit would not take the case, noted that his court's position did not conflict with the law in other circuits. Splits among the circuits are the hallmark of cert-worthy cases.
"But if a party does not have that," said Supreme Court expert Carter G. Phillips of Sidley Austin in an e-mail on the subject, "then the next best thing is an impassioned dissent urging Supreme Court review of the case."
Jonathan L. Marcus of Covington & Burling, another experienced high court practitioner, added, "The Carnes opinion lays out a road map for the cert petition."
COMPETING FEE REQUESTS
The fee fight has its roots in a long-running case about the foster care systems in DeKalb and Fulton counties. Filed against the Georgia Department of Human Resources in June 2002, the suit alleged systemic deficiencies in those counties' systems.
The complaints were settled in 2005 by a consent decree that, among other things, mandated caseload limits for child welfare workers, instituted regular visits by caseworkers to foster children and limited the placement of children in emergency shelters and group homes.
But the settlement left open the issue of attorney fees, which the law allows plaintiffs lawyers to collect when they succeed in civil rights cases.
The plaintiffs attorneys -- led by Jeffrey O. Bramlett of Bondurant, Mixson & Elmore and Marcia Robinson Lowry of Children's Rights Inc. -- requested more than $16 million in fees and expenses. Much of that figure came from $7,171,434 worth of hours lawyers and paralegals had spent on the case. The plaintiffs lawyers asked Judge Marvin H. Shoob to double that figure, based on the complexity of the case, quality of service and potential for loss if they didn't prevail.
The state instead calculated that the plaintiffs lawyers deserved only $2.9 million.
Ruling on the fee request in 2006, Shoob cut the bills to $6,012,802, agreeing with the state that some of the entries on the lawyers' billing records were vague and that the hours claimed for certain tasks were excessive. But then he multiplied that by a factor of 1.75, saying the plaintiffs lawyers' "exceptional work and the exceptional result they achieved" deserved an enhanced award.
Both sides appealed to the 11th Circuit, but a July ruling by a three-judge panel spent little ink on the plaintiffs' request for more money.
The judges, Carnes, Wilson and Senior Judge James C. Hill, agreed that 11th Circuit precedent required them to uphold the award. But Carnes said he would have ruled against the bonus had his court's precedent -- which he said conflicted with the Supreme Court's direction -- allowed him to do so.
Hill signaled a possible en banc -- or Supreme Court -- fight to come, noting that "these additional writings will be of interest to jurists who might wish to pursue the matter in further proceedings, should any arise."
DISSENTING JUDGES
The state asked the 11th Circuit to take the case en banc, but the court denied the request last week.
Carnes and Judges Gerald B. Tjoflat and Joel F. Dubina aired their disagreement with the decision made by the majority of their colleagues.
Joined by Tjoflat and Dubina, Carnes said his publicly dissenting from the full court's denial of a request to rehear a case was unusual.
"Although I have been on the short end of en banc votes before," wrote Carnes, "this is the first time in sixteen years on the bench that I have written, or even joined, a dissent from the denial of rehearing en banc."
The issue in the case affects at least 100 federal fee-shifting statutes, wrote Carnes, providing a partial list in an appendix to his opinion.
He said a key Supreme Court precedent on the issue can be read different ways, and the facts of the foster care case squarely present the issue for clarification by the high court.
Carnes wrote that fee enhancements shouldn't be used to award great performance and results but may be appropriate for lawyers who take on unpopular or dangerous undertakings.
Carnes had noted in July that the plaintiffs lawyers hardly risked their reputations in the case, as they touted their success representing underprivileged kids on their Web sites, and Bramlett went on to be State Bar president.
Tjoflat wrote separately to say that in the key 11th Circuit cases, the court merely assumed theoretically that superior performance and results could be the basis for an enhancement -- not that such enhancements had to be affirmed.
Under that reading of the case law, Tjoflat added, Shoob's order should be vacated because it was driven by the district judge's "personal experience and subjective relative assessment of the lawyers' performance."
Tjoflat criticized Shoob's comments like this one: "After 58 years as a practicing attorney and federal judge, the Court is unaware of any other case in which a plaintiff class has achieved such a favorable result on such a comprehensive scale."
Shoob's reliance on personal observation is "unreviewable" and violated the state's due process rights, Tjoflat wrote.
"It is obvious to me that the district judge failed to comprehend the due process implications of what he was doing," wrote Tjoflat. "Had he been aware of those implications, he would have been faced with two choices: he could (1) announce his intent to testify as a plaintiff's witness; or (2) put aside his personal opinion of counsel's performance and the result attained and, instead, point to other specific evidence in the record as the bases for his attorney's fees decision. The first choice would have required his recusal from the case."
Even if 11th Circuit precedent did require affirmance of Shoob's order, wrote Tjoflat, the court still should have taken up the case for en banc review to reconsider that precedent. A fee enhancement for superior results in a class action seeking equitable relief from a judge is never appropriate, he wrote, because there is only one legally proper result.
"Anything over and above the fully and fairly compensatory fee, to be candid, could only be the product of the attorney's greed or the judge's favoritism," Tjoflat concluded. "Neither ground is, or should be, permitted under the fee shifting statutes or sanctioned by this court."
Wilson, who was on the three-judge panel that issued the original decision in July, defended the full court's decision to not review the case further.
"The Supreme Court has consistently indicated that, in the 'rare' and 'exceptional' case, the district court has the discretion to grant an enhancement," he wrote.
He added that all eight of the circuits that have considered the issue agreed that fee enhancements for exceptional performance are OK.
Wilson wrote that district judges are in the best position to evaluate the performance of the attorneys before them. He said Shoob's observations on that front were not testimony but simply the explanations required under Supreme Court precedent.
WILL THE STATE RESPOND?
The state has 90 days from Nov. 5 to file a cert petition.
Russ Willard, a spokesman for the attorney general, said in a voice mail, "Our office is still in consultations with our client to determine what, if any, action may be appropriate given the 11th Circuit's order."
He added that the office has not consulted with any Supreme Court specialist about taking over this case should the state ask the high court to get involved.
Mark H. Cohen of Troutman Sanders has been handling the state's case at the 11th Circuit.
PLAINTIFFS' LAWYERS RESPOND
Responding to the dissenters' arguments, Bramlett said that Congress had decided in the 1970s to allow district judges to shift fees in order to encourage civil rights actions brought by the private bar because it was dissatisfied with the progress of civil rights enforcement.
Bramlett acknowledged the plaintiffs team has gotten some inquiries from lawyers offering to help defend against a cert petition. He deferred to Wilson's argument for why the case isn't cert-worthy. "He lucidly explains what the law is," said Bramlett, "why taking the case en banc was inappropriate."
But Supreme Court litigators said that issues besides whether there's a circuit split may play into the high court's decision whether to take up the case.
The Supreme Court may consider how often district judges actually award fee enhancements, said Marcus, the Covington & Burling lawyer in Washington. Another factor would be the justices' respect for the circuit judge writing the opinion asking them to take up the case, he said, noting he doesn't know Carnes' reputation.
The head of Kilpatrick Stockton's Supreme Court practice, Washington lawyer Mark I. Levy, said in an e-mail that a deep division within a circuit on an en banc vote is sometimes cited by the high court in explaining in its merits decision why it took up a case.
"Of course," said Levy, "the cert process is a black box and we rarely get a glimpse of what's going on inside."
The case is Kenny A. v. Perdue, No. 06-15514.
