The nation's highest court announced Monday that it will hear Georgia's appeal of an order requiring it to pay more than $10.5 million to attorneys who challenged the state's foster care system.
The rare grant of a petition for certiorari had been foreshadowed by opinions from Judge Edward E. Carnes of the 11th U.S. Circuit Court of Appeals. Last year Carnes wrote for a panel that affirmed a trial judge's fee award, including a bonus, but not before Carnes compared the plaintiffs lawyers to a greedy John D. Rockefeller.
On Monday, the U.S. Supreme Court agreed to consider whether a fee awarded under a federal fee-shifting statute can ever be enhanced based solely on the quality of the lawyers' performance and the result they obtained.
When he increased the lawyers' fee award, Senior U.S. District Judge Marvin H. Shoob said their "exceptional work and the exceptional result they achieved" merited an enhanced award.
But on appeal Carnes wrote that rewarding particularly good lawyering doesn't make sense, because either the plaintiff won what the law allows or he won more than the law allows, which is not to be rewarded. Some cases -- such as those in which the plaintiffs were so unpopular that the case could hurt the lawyer's career -- may support an enhancement, Carnes said, but this case was not one of those.
The high court's attention was successfully sought by the office of state Attorney General Thurbert E. Baker and Troutman Sanders' Mark H. Cohen, who is expected to argue for the state at the Supreme Court in the fall.
"We think that it's an important issue," Baker's spokesman, Russ Willard, said Monday. "This was a case that was settled by the state. The parties got the relief that they were seeking, and the plaintiffs attorneys' efforts were rewarded handsomely by the normal lodestar calculation, and the enhancement represented an inappropriate windfall to the plaintiffs' attorneys. It was an inappropriate reward, and we hope that the U.S. Supreme Court will rectify that situation."
The lawyers for the plaintiffs included the current president of the State Bar of Georgia, Jeffrey O. Bramlett of Bondurant, Mixson & Elmore, and Marcia Robinson Lowry of Children's Rights Inc. in New York.
Lawyers for the plaintiffs have said that lawyers who lay out costs for such cases need some expectation that they will be compensated when they win. "It was a very time-consuming, very expensive case," Lowry said Monday, "because the state fought it very, very hard." She added that the state has yet to pay a penny of the plaintiffs lawyers fees and expenses.
The fee fight is rooted in a suit filed against the state Department of Resources in 2002, alleging deficiencies in the foster care systems in DeKalb and Fulton counties. The complaints against the state 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.
Separate agreements covering Fulton and DeKalb counties addressed only the need for children to be represented by lawyers in juvenile court. DeKalb was released from court oversight last year on the ground that it made the required changes, and a recent report by a court-appointed monitor recounted progress in Fulton that Children's Rights has heralded as dramatic improvements.
"I think the compliance has been mixed," Lowry said Monday, "but there's no question that good things are happening for children in Atlanta. That would not have happened without the litigation."
Although in their settlements with the plaintiffs DeKalb agreed to pay $175,000 in attorney fees and expenses and Fulton agreed to pay up to $174,000, the settlement with the state left open the issue of attorney fees, which the law allows plaintiffs' lawyers to collect when they succeed in civil rights cases. The plaintiffs' lawyers asked Shoob to award more than $16 million in fees and expenses. Much of that came from $7,171,434 worth of hours lawyers and paralegals had spent on the case. The plaintiffs' lawyers asked 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 calculated the plaintiffs' attorneys deserved only $2.9 million.
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 his figure by 1.75 as an extra reward for the plaintiffs' lawyers. He cited U.S. Supreme Court precedent for the proposition that in rare cases attorney fees can be enhanced when the quality of representation is superior to what can be expected for the hourly rate charged and the level of success achieved is exceptional.
On appeal, Carnes, Judge Charles R. 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.
Carnes and Judges Gerald B. Tjoflat and Joel F. Dubina later aired their disagreement with the full court's denial of a request to rehear the case. Carnes wrote that although he had been on the short end of en banc votes before, it was the first time in 16 years on the bench that he had written, or even joined, a dissent from the denial of rehearing en banc. In his dissent he argued that the Supreme Court needs to give more direction on fees questions.
Lowry said she didn't know why the Supreme Court agreed to take the case. "We think the issue is pretty clearly resolved," she said. "Maybe [the justices] don't think it's clear, or maybe they want to make it clearer." Bramlett said there wasn't a split in the circuits on the issue, a traditional hallmark of cases the court decides to hear.
Mark I. Levy, a Washington lawyer not involved in the case who is the head of Kilpatrick Stockton's Supreme Court practice, said the amount of money involved, that it was a state petitioning for review, and Carnes' call for action likely were factors explaining the high court's decision. He also said the state did a good job in its petition for review of showing that the law on fees is confused. "I think all of those were probably factors here," said Levy.