Arthur LAVIN; Jason Chao; Michael W. Devereaux; Patricia J. Kellner; Jerome Liebman; Eric R. Schreiber; Constance D. Margoulias; Peter A. Degolia; Nathan A. Beachy, Plaintiffs-Appellants, v. Jon HUSTED, in his official capacity as Ohio Secretary of State, Defendant-Appellee.
No. 13-3838.
United States Court of Appeals, Sixth Circuit.
Argued: June 18, 2014. Decided and Filed: Sept. 4, 2014.
764 F.3d 646
To characterize F.H.‘s injuries as “educational” is to belittle them. The gravamen of his claim is not that the conduct described in his complaint might reduce his SAT scores. The gravamen of his claim, rather, is that this conduct was an attack upon F.H.‘s dignity as a human being. That injury was not remediable by some change to F.H.‘s “Individualized Education Plan.” Nor was it by a mere promise not to let these things happen again. The remedy for F.H.‘s injury, therefore, lay not in “the IDEA‘s administrative procedures[.]” S.E. v. Grant Bd. Of Educ., 544 F.3d 633, 642 (6th Cir.2008). Instead his remedy lies in federal court, where F.H. can obtain not only compensation for his injuries, but recognition of what they actually were.
ARGUED: Subodh Chandra, The Chandra Law Firm, LLC, Cleveland, Ohio, for Appellants. Kristopher J. Armstrong, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Subodh Chandra, Donald P. Screen, Sandhya Gupta, Ashlie Case Sletvold, The Chandra Law Firm, LLC, Cleveland, Ohio, for Appellants. Richard N. Coglianese, Ryan L. Richardson, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. Jennifer L. Branch, Alphonse A. Gerhardstein, Gerhardstein & Branch Co. LPA, Cincinnati, Ohio, for Amici Curiae.
Before: SILER, GILMAN, and GIBBONS, Circuit Judges.
OPINION
JULIA SMITH GIBBONS, Circuit Judge.
After two years of litigation, including
Plaintiffs are physicians and Ohio Medicaid providers who wanted to support various candidates running for Ohio Attorney General and Cuyahoga County Prosecutor in the 2010 election, but were barred from doing so by an Ohio statute. See
The district court twice determined that the plaintiffs’ position was wrong—first on plaintiffs’ motion for a preliminary injunction and again on summary judgment. Plaintiffs appealed, and this court unanimously reversed. See Lavin v. Husted, 689 F.3d 543 (6th Cir.2012). Holding that the statute‘s unconstitutionality was “clear” and “unavoidable,” this court remanded with instructions to enter judgment for the plaintiffs. See id. at 548. The district court then entered a permanent injunction preventing the defendant from enforcing the statute against candidates or plaintiffs.
Plaintiffs moved for attorneys’ fees and costs under
After review, the district court awarded only $128,908.74 in fees and $6,315.00 in costs—an amount seventy percent less than the magistrate judge‘s recommendation and eighty percent less than plaintiffs’ original request. In doing so, the district court accepted some of the magistrate judge‘s suggested reductions and rejected others as insufficient. The district court then drastically cut hourly rates, struck additional hours spent on third-party discovery and other miscellaneous matters, and reduced appellate hours by fifty percent. After arriving at its lodestar calculation, the district court further reduced the fees by thirty-five percent under the Johnson factors. See Hensley v. Eckerhart, 461 U.S. 424, 430 n. 3, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); Johnson v. Ga. Highway Express, Inc., 488 F.2d 714, 717-19 (5th Cir.1974).
Throughout the opinion, the district court‘s view of plaintiffs and their lawyers is apparent. The district court repeatedly expressed concern that the “taxpayers will ultimately bear the burden of any fee award [while] the named Plaintiffs are medical doctors presumably abundantly capable of paying for representation.” And the court was frustrated by the thought that “this action was derived mainly by counsel in order to garner fees and not from Plaintiffs’ frustrated desire to make a campaign contribution.” Compounding the court‘s frustration was its belief that plaintiffs’ attorneys charged too much for what the court thought was a relatively straightforward case. Unhappy with the high fee request from “Plaintiffs [who] are not the typical civil rights Plaintiffs,” the district court compared the plaintiffs’ civil rights attorneys to attor-
The contrast between these cases which may literally mean the difference between life and death, the most thorough deprivation of freedom sanctioned under the law, and the instant case is as stark a difference as black and white or good and evil. It is unfathomable to think that a persons’ [sic] life and liberty can be defended at a total cost, including appeals, of under $17,000.00, while the attorneys in this case have sought in excess of $660,000.00 from the government for a facial challenge to a thirty year old law that was enacted to prevent corruption in election campaigns.
Plaintiffs appeal, arguing that the district court abused its discretion. Plaintiffs also ask for reassignment on remand.
II.
“The primary concern in an attorney fee case is that the fee awarded be reasonable.” Reed v. Rhodes, 179 F.3d 453, 471 (6th Cir.1999) (citing Blum v. Stenson, 465 U.S. 886, 893, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). The award should be “adequately compensatory to attract competent counsel,” but also “avoid[] producing a windfall for lawyers.” Adcock-Ladd, 227 F.3d at 349. In calculating a reasonable attorney fee, the trial court should first determine the fee applicant‘s “lodestar,’ which is the proven number of hours reasonably expended on the case by an attorney, multiplied by his court-ascertained reasonable hourly rate.” Id. (citing Hensley, 461 U.S. at 433). “The trial judge may then, within limits, adjust the ‘lodestar’ to reflect relevant considerations peculiar to the subject litigation.” Id. (citing Reed, 179 F.3d at 471-72). In performing its post-lodestar analysis, the court may consider the twelve factors listed in Johnson. See Adcock-Ladd, 227 F.3d at 349 (citing Hensley, 461 U.S. at 434 n. 9).
Plaintiffs argue on appeal that the district court erred in almost every part of its fee calculation. For example, plaintiffs contend that there is no basis for the district court‘s decision to cut all hours spent on the case before the official fee agreement was signed. Citing cases holding that specific fee agreements should not factor into the district court‘s analysis, plaintiffs argue that they should receive reasonable fees for their counsel‘s work in drafting the complaint and motion for a preliminary injunction—all of which happened before the fee agreement was
Plaintiffs also argue that the district court‘s discovery reductions are problematic. In slashing plaintiffs’ fees for discovery, the district court remarked that “[a] facial attack challenges the statute without regard to the underlying facts of any individual‘s case and without need for discovery as to how the statute was applied in any particular case.” But, as plaintiffs point out, they brought an overbreadth challenge and therefore bore “the burden of demonstrating, ‘from the text of [the law] and from actual fact,’ that substantial overbreadth exists.” Virginia v. Hicks, 539 U.S. 113, 122, 123 S.Ct. 2191, 156 L.Ed.2d 148 (2003) (alteration in original) (quoting N.Y. State Club Ass‘n, Inc. v. City of New York, 487 U.S. 1, 14, 108 S.Ct. 2225, 101 L.Ed.2d 1 (1988)). And plaintiffs correctly recognize that it is not just overbreadth claims that implicate factual issues requiring discovery. Constitutional questions do not exist in a factual vacuum, particularly First Amendment questions, which frequently require plaintiffs to show chill.
We agree with plaintiffs that these, and possibly other, individual determinations by the district court are wrong. But it is not the task of this court to analyze each deduction line-by-line. See Hensley, 461 U.S. at 437. And even if we were so inclined, we could not perform a detailed analysis of the district court‘s fee calculation because the district court relied on several impermissible considerations that so permeate the opinion that appellate review of any one individual determination is impossible. Cf. United States v. Musgrave, 761 F.3d 602, 608-09 (6th Cir.2014) (holding that the district court abused its discretion when “[i]mpermissible considerations permeated [its] justification” for a defendant‘s sentence).
For example, the district court repeatedly expressed a preference for awarding fees “on behalf of plaintiffs who could not otherwise afford to pay an attorney,” but against fees for the plaintiffs here, who were “presumably abundantly capable of paying for representation.” A plaintiff‘s ability to pay his or her attorney, however, is irrelevant to the fee inquiry. Section 1988 does not provide—or even express a preference—for “plaintiffs who could not otherwise afford to pay an attorney.” Blanchard, 489 U.S. at 94. “Plaintiffs who can afford to hire their own lawyers, as well as impecunious litigants, may take advantage of this provision.” Id.; see also Democratic Party of Wash. State v. Reed, 388 F.3d 1281, 1285 (9th Cir.2004); Milwe v. Cavuoto, 653 F.2d 80, 83 (2d Cir.1981). Therefore, the district court‘s antagonism toward plaintiffs’ “atyp-
The district court also felt it was “imperative” to review plaintiffs’ fee request—which would “ultimately be borne by the taxpayer“—with a “renewed level of scrutiny.” But consideration of the taxpayers is “an improper ground for denying or reducing an attorney‘s fee.” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 180 (4th Cir.1994); see also, e.g., Johnson v. Mississippi, 606 F.2d 635, 637 (5th Cir.1979); Criterion Club of Albany v. Bd. of Comm‘rs of Dougherty Cnty., 594 F.2d 118, 120 (5th Cir.1979). “The purpose of
Nothing in the statute suggests that the incentive to ferret out civil rights violations, provided by the prospect of attorneys’ fee, should be any less when the fees come from tax revenues. See Copeland v. Marshall, 641 F.2d 880, 895 (D.C.Cir.1980) (discussing fee-shifting in the context of Title VII). Moreover, reducing fees in light of their possible burden on taxpayers ignores the fact that the taxpayers themselves benefit from the successful lawsuit. See Am. Booksellers Ass‘n, Inc. v. Virginia, 802 F.2d 691, 697 (4th Cir.1986). While the exact number of taxpayers who directly benefit from any given civil rights action will vary,2 all taxpayers indirectly benefit from the redress and elimination of unconstitutional statutes and practices. In this way, civil rights plaintiffs function as “private attorney[s] general,” vindicating a policy that Congress considered of the highest priority.” Fox v. Vice, — U.S. —, 131 S.Ct. 2205, 2213, 180 L.Ed.2d 45 (2011) (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968)).
The district court‘s aversion toward plaintiffs’ wealth and its emphasis on the taxpayer burden appear throughout the opinion. For example, the district court referenced these concerns in its general discussion of
III.
For similar reasons, we also grant plaintiffs’ request for reassignment on remand. “This Court possesses the
- whether the original judge would reasonably be expected to have substantial difficulty in putting out of his or her mind previously expressed views or findings;
- whether reassignment is advisable to preserve the appearance of justice; and
- whether reassignment would entail waste and duplication out of proportion to any gain in preserving the appearance of fairness.
Id. (quoting U.S. ex rel. Williams v. Renal Care Grp., Inc., 696 F.3d 518, 532-33 (6th Cir.2012)). An extraordinary power, reassignment “‘should be rarely invoked.‘” Id. at 533.
As discussed above, the district court‘s opinion reflects a distinct hostility toward the plaintiffs because they were wealthy doctors challenging a thirty-year-old campaign finance law. This language—repeated over and over in the opinion—creates the appearance that the district court was biased against plaintiffs. See Rorrer, 743 F.3d at 1050 (holding that the district court judge‘s antagonistic statements “indicate[d] that allowing the same district judge to preside . . . would compromise ‘the appearance of justice‘” (quoting Renal Care Grp., 696 F.3d at 532)); John B. v. Goetz, 626 F.3d 356, 364 (6th Cir.2010) (reassigning the case when the “the orders issued by the district court . . . contain[ed] increasingly accusatory language directed at the defendants“); United States v. Hagby, 20 Fed.Appx. 299, 300 (6th Cir.2001) (reassigning the case after the district court “forcefully expressed her dislike of drugs” at a defendant‘s sentencing).
The district court also was skeptical about plaintiffs’ and their counsel‘s true motives in the litigation. It snidely remarked that “counsel was merely scouring through campaign laws hoping to find an old one such as the statute at issue here to challenge in the hope of raking in overstated fees.” But the district court had no evidence of any unseemly intent. And even if the possibility of fees motivated the lawsuit, “Congress intended that attorneys would file suits, which otherwise would not have been brought, simply because fees were available under
We acknowledge that this case concerns a fee application ending two years of litigation in front of a judge who is intimately familiar with the facts. We emphasize, however, that fee cases are as worthy of reassignment as those on the merits.
IV.
For the above reasons, we vacate the district court‘s award of attorneys’ fees and remand for recalculation by a different judge.