Lead Opinion
When asked how much money would be enough for him, John D. Rockefeller reportedly said: “Just a little bit more.”
Not caught up in the district court’s spirit of generosity with their money, the Georgia taxpayers (through their governor and other officials who are defendants) have appealed the attorneys’ fees award because of that multi-million dollar enhancement and for other reasons. The plaintiffs’ attorneys, convinced that the district court was not generous enough, have cross-appealed (through the class they represent), insisting that they deserve even more than the $10,500,000 total fees that the court awarded them.
I.
Kenny A. and eight other named plaintiffs in this lawsuit are foster children in the custody of the Georgia Department of Human Resources. Kenny A. ex rel. Winn v. Perdue,
(1) assigning excessive numbers of cases to inadequately trained and poorly supervised caseworkers; (2) not developing a sufficient number of foster homes properly screened to ensure the plaintiff children’s safety; (3) not identifying adult relatives who could care for the plaintiff children as an alternative to strangers or impersonal institutions; (4) failing to provide relevant information and support services to foster parents in order to prevent foster placements from being disrupted; (6) failing to develop administrative controls such as an information management system that ensures plaintiff children are expeditiously placed in a foster home matched to meet the children’s specific needs; (6) failing to provide timely and appropriate permanency planning, including failing to provide services that would enable plaintiffs to achieve their permanency planning goals; (7) placing, plaintiffs in dangerous, unsanitary, inappropriate shelters and other placements; (8) failing to provide appropriate and necessary mental health, medical, and education services to children in their custody; and (9) separating teenage mothers in foster care from their own children and separating siblings in foster care from each other without providing visitation.
Id.
The complaint asserted fifteen causes of action under federal and state law. Kenny A. ex rel. Winn v. Perdue,
The district court denied the defendants’ motions to dismiss and for summary judgment. Kenny A III,
At the same time, the district court referred the case to mediation. Id. at 1269. As that court would later describe it, “over the next four months the parties attended eighteen separate mediation sessions where they spent more than 110 hours trying to hammer out a settlement agreement.” Id. They were eventually successful. Id.
Its centerpiece is a series of thirty-one outcome measures that State Defendants have agreed to meet and sustain for at least three consecutive six-month reporting periods.
The outcome measures, many of them requiring phased-in results over a two-year period, seek to improve performance in the following areas: timely commencement and thorough completion of investigations of reported abuse or neglect; regular visits of foster children by case workers; approval and licensure of foster homes and other placements; the percentage of children who are the victims of substantiated maltreatment while in foster care; the percentage of children in foster homes that exceed their licensed capacity; the percentage of children who have experienced multiple moves while in foster care; and periodic judicial reviews of the safety and status of foster children.
In addition, the Consent Decree requires comprehensive and periodic delivery of medical, dental, and mental health services to foster children; a detailed process for improved goal-setting, case planning and periodic reviews of children’s status while in foster care; limits on the placement of children in emergency shelters and group homes and institutions, and protections against overcrowding in foster homes; and the establishment of reimbursement rates to adequately compensate providers for caring for foster children.
Moreover, State Defendants commit to reduced caseloads for all case managers and supervisors; a fully implemented single statewide automated child welfare information system; and maintaining or establishing placements and related services identified in a “needs assessment” to be conducted by a neutral expert. The settlement also includes processes for the supervision of private contract agencies that provide homes and services for foster children; improvements in foster parent screening, licensing and training, as well as foster parent support and communication; improvements in case manager training; improvements in processes for addressing suspected abuse or neglect and suspected corporal punishment of children in foster care; and improvements in efforts to maximize available federal funding.
Finally, the settlement provides that two child welfare specialists will serve as the Court’s independent accountability agents charged with the responsibility of measuring and reporting publicly on the State Defendants’ compliance with these and other undertakings as specified in the Consent Decree.
Id. at 1289.
The 2005 settlement agreement further acknowledged that “Plaintiff Class is entitled to recover its expenses of litigation, including reasonable attorneys’ fees and nontaxable costs, pursuant to 42 U.S.C. § 1988 and Fed.R.Civ.P. 28(h).” The agreement said that the parties would “attempt without court intervention to resolve the proper amount of Class Counsel’s fees and expenses of litigation.” If the parties could not reach an agreement, then “[t]he amount of any award shall be determined by the Court in accordance with the re
That is what happened. Because the parties could not agree on the amount of fees, the class filed a motion for the court to make a determination and award. Id. at 1269-70. It was accompanied by 2,500 pages of billing records, by affidavits from the two lead counsel for the class, and by affidavits from five Atlanta area attorneys who were not involved in the case. Id. at 1270, 1290. The motion sought a total of $14,342,860 in fees. Id. Half of that amount, $7,171,434.30, was to compensate the attorneys and their paralegals for the 29,908.73 hours they claimed to have worked at rates they sought; those rates ranged from $75 to $495. Id. The other $7,171,434.30 they sought was to be an enhancement of the fee award for a job well done. Id.
The defendants objected to some of the hourly rates requested and to the number of hours claimed. Id. They broke down the 2,500 pages of submitted billing records into fifteen categories of hours representing different stages of the case, and argued that in fourteen of those categories the plaintiffs’ attorneys had expended more hours than was reasonably necessary to effectively represent the class. Id. at 1273-74 & n. 5. The defendants also argued that many of the entries on the billing records were too vague to support a claim for compensation. Id. at 1274.
As for the request that the fee award be doubled by means of a $7 million enhancement, the defendants objected, arguing that this was not one of the rare cases in which an enhancement would be appropriate. They argued that enhancing the fee based on the results obtained would be improper because the skill of the plaintiffs’ attorneys in litigating the case would already have been taken into account in setting their hourly rates. Double counting the skill factor would be inappropriate, the defendants argued.
The district court overruled all of the defendants’ objections to the hourly rates sought by the plaintiffs’ attorneys. Id. at 1285. It granted in full each hourly rate requested, ranging from $215 to $495 for plaintiffs’ attorneys, depending on their relative skill and experience. Id. at 1284-85. The court did not reduce the requested rates at all even though some of them were New York rates instead of Atlanta rates, and even though some of the attorneys (for example, Marcia Robinson Low-ry, one of the two lead attorneys) recently had been awarded a smaller hourly rate for work on another case of exactly the same type. Id. at 1284-86. Likewise, the court approved in full the requested hourly rates of $75 to $150 for paralegal work. Id. at 1285.
The district court did partially sustain the defendants’ objection to the number of hours that the plaintiffs’ attorneys claimed to have worked on the case. Id. at 1274. The court agreed with the defendants that some of the entries on counsel’s billing records were vague and that the hours claimed for nine of the fifteen billing categories were excessive. Those nine excessively billed categories were: (1) preparing the complaint and mandatory disclosures; (2) litigating the preliminary injunction motion; (3) producing and analyzing documents; (4) litigating discovery motions; (5) conferencing with each other; (6) preparing expert witness reports; (7) responding to the summary judgment motion; (8) preparing for trial; and (9) travel. Id. at 1274-84,1286.
The court dealt with the vague and excessive billing two ways, one for the non-travel hours and the other for travel hours. It made “an across-the-board 15% reduction in the number of non-travel related hours claimed by plaintiffs’ counsel.” Id.
On the applicability of an enhancement to the fee request, the court overruled the defendants’ objections. Id. at 1288. The court found that the plaintiffs’ attorneys were entitled to an enhancement because their hourly rate did “not take into account (1) the fact that class counsel were required to advance case expenses of $1.7 million over a three-year period with no ongoing reimbursement, (2) the fact that class counsel were not paid on an on-going basis as the work was being performed, and (3) the fact that class counsel’s ability to recover a fee and expense reimbursement were completely contingent on the outcome of the case.” Id. (footnote omitted).
The district court also found that “the superb quality of [counsel’s] representation far exceeded what could reasonably be expected for the standard hourly rates used to calculate the [fee].” Id. at 1288-89. The court commented that “[q]uite simply, plaintiffs’ counsel brought a higher degree of skill, commitment, dedication, and professionalism to this litigation than the Court has seen displayed by the attorneys in any other case during its 27 years on the bench.” Id. at 1289. Finally, the court said that an enhancement was appropriate because “the evidence establishes that plaintiffs’ success in this case was truly exceptional.” Id.
For these reasons, and based on the affidavits of some Atlanta area attorneys urging the court to enhance the fee award (even more than it did), the court multiplied the $6,012,802.90 fee award by 1.75, thereby enhancing it by 75 percent or $4,509,602.00. Id. at 1290. That enhancement boosted the total fee award to $10,522,405.08. Id.
II.
In reviewing the decisions of the district court raised in this appeal and cross-appeal, we look at questions of law anew but we review the court’s findings of fact only for clear error. Atlanta Journal & Constitution v. City of Atlanta Dep’t of Aviation,
III.
In their cross-appeal the plaintiffs contend that the district court abused its discretion in two respects: (1) by not applying the common fund and common benefit doctrines, which would have resulted in a fee award substantially higher than the one they received; and (2) by not compensating them for the $801,864.40 they spent on expert witness expenses. The district court resolved each of those two issues correctly, and we affirm its decision of them on the basis of the reasoning contained in its opinion. Kenny A. III,
IY.
The defendants conceded in the settlement agreement that the class had prevailed in the litigation and was entitled to recover reasonable attorneys’ fees under 42 U.S.C. § 1988. That section provides in relevant part that in any action, like this one, where the plaintiffs seek to enforce their constitutional rights under 42 U.S.C. § 1983, “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.” 42 U.S.C. § 1988(b).
In their appeal the defendants contend that the district court abused its discretion in three ways. Their first contention is that the district court should not have awarded the plaintiffs’ attorneys all of the photocopying expenses they claimed. See Kenny A. III,
Y.
We turn now to the defendants’ other contentions, starting with their argument that the district court erred in calculating the lodestar amount. “The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley v. Eckerhart,
Although the defendants no longer contest the hourly rate component of the district court’s lodestar calculation,
The district court’s reduction of only 16 percent in the submitted hours does appear charitable, maybe even excessively so, in favor of the plaintiffs’ attorneys, but we are not quite convinced that it was a clear error of judgment, which is what we would have to conclude in order to find an abuse of discretion. See Johnson,
VI.
The defendants’ final contention is that the district court should not have granted plaintiffs’ attorneys a $4.5 million enhancement to the $6 million lodestar amount. That contention can claim the favor of a presumption, and not a weak one either. The Supreme Court has instructed us that there is a “strong presumption” that the lodestar figure, without any adjustment, is the reasonable fee award. Dague,
A.
In order to appreciate just how rare and exceptional a case must be for an enhancement of the lodestar amount to be permissible these days, a review of the evolution of Supreme Court thinking in this area is necessary. The history of the issue is one of early, tentative statements indicating more receptiveness to enhancements than
Hensley, a 1983 decision, was the Court’s first stab at interpreting what Congress meant by a “reasonable fee” under § 1988 and similar fee-shifting statutes. In that case the Court adopted the lodestar method for calculating fees. Hensley,
Instead, the actual adjustment issue decided in Hensley was whether the lodestar figure should be reduced for plaintiffs who have achieved only partial or limited success. See id. at 426,
The next term the Supreme Court decided Blum v. Stenson,
While repeating the Hensley opinion’s statement that “in some cases of exceptional success an enhanced award may be justified,” id. at 897,
The novelty and complexity of the issues presumably were fully reflected in the number of billable hours recorded bycounsel and thus do not warrant an upward adjustment in a fee based on the number of billable hours times reasonable hourly rates. There may be cases, of course, where the experience and special skill of the attorney will require the expenditure of fewer hours than counsel normally would be expected to spend on a particularly novel or complex issue. In those cases, the special skill and experience of counsel should be reflected in the reasonableness of the hourly rates. Neither complexity nor novelty of the issues, therefore, is an appropriate factor in determining whether to increase the basic fee award.
Id. at 898-99,
The Blum Court then moved on to the next factor:
The “quality of representation” ... generally is reflected in the reasonable hourly rate. It, therefore, may [note the use, again, of the word “may” instead of “will”] justify an upward adjustment only in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was “exceptional.”
Id. at 899,
Regarding the results obtained factor, the Court reasoned that successful results are to be considered when calculating counsel’s hourly rate. Id. at 900,
The Blum Court left for another day the question of whether the risk borne by the plaintiffs’ counsel in taking the case on a contingency basis could ever justify an enhancement of the lodestar. Id. at 901 n. 17,
The Court’s next “reasonable fee” case was Delaware Valley J.
A strong presumption that the lodestar figure — the product of reasonable hours times a reasonable rate — represents a “reasonable” fee is wholly consistent with the rationale behind the usual fee-shifting statute, including the one in the present case. These statutes were not designed as a form of economic relief to improve the financial lot of attorneys, nor were they intended to replicate exactly the fee an attorney could earn through a private fee arrangement with his client. Instead, the aim of such statutes was to enable private parties to obtain legal help in seeking redress for injuries resulting from the actual or threatened violation of specific federal laws. Hence, if plaintiffs, such as Delaware Valley, find it possible to engage a lawyer based on the statutory assurance that he will be paid a “reasonable fee,” the purpose behind the fee-shifting statute has been satisfied.
Id.
The Court in Delaware Valley I closed some doors for enhancements that it had left ajar in earlier cases. It held that the strong presumption that the lodestar figure is the amount to be awarded- — the presumption against enhancements — -cannot be overcome by the special skill and experience of counsel, the quality of representation, or the results obtained. Id. Those factors, the Court reasoned, “are presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award.” Id. This is the Court’s reasoning:
[Wjhen an attorney first accepts a case and agrees to represent the client, he obligates himself to perform to the best of his ability and to produce the best possible results commensurate with his skill and his client’s interests. Calculating the fee award in a manner that accounts for these factors, either in determining the reasonable number of hours expended on the litigation or in setting the reasonable hourly rate, thus adequately compensates the attorney, and leaves very little room for enhancing the award based on his post-engagement performance. In short, the lodestar figure includes most, if not all, of the relevant factors constituting a “reasonable” attorney’s fee, and it is unnecessary to enhance the fee for superior performance in order to serve the statutory purpose of enabling plaintiffs to secure legal assistance.
Id. at 565-66,
The Delaware Valley I Court reversed the enhancement part of the fee award insofar as the enhancement was based on the quality of the attorneys’ work and the outstanding result obtained. Id. at 568,
It was not until five years later, after the membership of the Court had changed,
The second factor, the Court said, is “ordinarily reflected in the lodestar — either in the higher number of hours expended to overcome the difficulty, or in the higher hourly rate of the attorney skilled and experienced enough to do so.” Id. “Taking account of it again through lodestar enhancement amounts to double counting.” Id. at 563,
The Court recognized that, unlike the second contingency factor, the first one — the relative merits of the claim — is not taken into consideration in determining the lodestar figure. That is no problem, the Court decided, because the relative merits of the claim “should play no part in the calculation of the award.” Id. For one thing, there is always a risk that a case will be lost — “no claim has a 100% chance of success.” Id. As a result, permitting adjustments based on risk would mean that the “computation of the lodestar would never end the court’s inquiry in contingent-fee cases.” Id. That would contradict the Court’s repeated instruction that there is a strong presumption that the lodestar is the fee to be awarded and adjustments to it are to be the rare exception, not the general rule.
Not only that, the Court said, but awarding enhancements based on the financial risk in taking the case would also “provide attorneys with the same incentive to bring relatively meritless claims as relatively meritorious ones.” Id. The “social cost of indiscriminately encouraging non-meritorious claims” would be too high, and encouraging attorneys to take less meritorious cases is “an unlikely objective of the ‘reasonable fees’ provisions.” Id. at 563,
The Dague decision is the last word we have from the Supreme Court on the issue of whether, and if so when, the lodestar amount may be enhanced in calculating the attorneys’ fees award under one of the federal fee-shifting statutes.
The district court’s $4.5 million enhancement to the $6 million lodestar figure in the present case cannot be squared with the Supreme Court decisions we have discussed. The district court did not explicitly mention, much less give full effect to, the strong presumption that the lodestar amount is a reasonable fee and therefore the fee to be awarded. See Dague,
The district court relied on several factors in granting the multi-million dollar enhancement to the lodestar figure, most of which are cited in the following passage from its opinion:
First, the evidence establishes that the quality of service rendered by class counsel, including their extraordinary commitment of capital resources, was far superior to what consumers of legal services in the legal marketplace in Atlanta could reasonably expect to receive for the rates used in the lodestar calculation. Specifically, the evidence shows that the hourly rates used in the lodestar calculation do not take into account (1) the fact that class counsel were required to advance case expenses of $1.7 million over a three-year period with no ongoing reimbursement, (2) the fact that class counsel were not paid on an ongoing basis as the work was being performed, and (3) the fact that class counsel’s ability to recover a fee and expense reimbursement were completely contingent on the outcome of the case.FN8 (Chandler Deck ¶¶5-8; Fellows Decl. ¶¶ 5-8; Knowles Deck ¶¶ 7-12; Rawls Deck ¶¶ 5-8; Lowry Deck ¶ 25; Bram-lett Deck ¶¶ 7(a) & 10,13-14.)
Kenny A. III,
1.
Starting from the top of the list, the district court’s reliance on the quality of service and superior performance, which are essentially the same thing, conflicts with the Supreme Court’s teachings that those considerations are adequately accounted for “either in determining the reasonable number of hours expended on the litigation or in setting the reasonable hourly rates,” and that it is “unnecessary to enhance the fee for superior performance in order to serve the statutory purpose of enabling plaintiffs to secure legal assistance.” Delaware Valley I,
It was after the successful settlement had been achieved, after they knew how well they had performed, after they knew the degree of difficulty involved, and after they knew how much capital resources and legal effort had been required that the plaintiffs’ attorneys asked for hourly rates they thought that they deserved. Over the objections of the defendants, the district court gave them those rates in full. It did not reduce a single hourly rate for any attorney or paralegal by so much as a penny.
In requesting their hourly rates, the lead counsel for the plaintiffs represented that those rates were adequate, subject to considerations they specified, to compensate them. Marcia Robinson Lowry, one of the two lead counsel, testified by affidavit that:
The standard hourly rates reflected in Exhibit 2 are fair, reasonable, and consistent with hourly rates in the Atlanta market for the price of legal services of comparable quality rendered in cases demanding similar skill, judgment and performance. These standard hourly rates do not, however, take into account the fact that class counsel was required in this case to advance the entire $1.7 million expense of prosecuting this case for the benefit of the class, or the fact that class counsel’s compensation was totally contingent upon prevailing in this action.
Jeffrey O. Bramlett, the other lead counsel, testified by affidavit that: “The hourly rates set forth in Exhibit 1 correctly reflect the hourly rates my law firm currently charges and collects from clients who hire us to perform legal services on a Standard Hourly Rate basis.” However, he further testified:
Standard Hourly Rates are predicated on the assumptions that the client will pay in full on a 30-60 day cycle, that counsel is not required to shoulder any significant financial risk of unreim-bursed case expense, and that counsel will be paid currently regardless of the result ultimately achieved. Here, Class Counsel was forced to advance case expenses approaching $1.7 million to protect the Class’ interests, largely because State Defendants refused Plaintiffs’ suggestion of a neutral case record review that would have saved both sides (and ultimately the State) duplicative cost. Here, Class Counsel was forced to personally advance Plaintiffs’ portion of that cost in the face of State Defendants’ vigorous assertion that it would not and could not be recovered. Here, Class Counsel’s recovery of any cost, let alone fee, was utterly dependent upon the contingency of a successful result. Here, Class Counsel was forced to invest more than $8.85 million of professional time and out-of-pocket expense over a three- and-one-half year period with no assurance of any recovery.
There is no indication that Mr. Bramlett’s firm’s regular hourly rates are anywhere near the low side of the Atlanta legal market or even the midpoint.
2.
The first two of those three considerations are delayed payment factors, and if they were permissible bases for enhancing a fee award, an enhancement would be required in virtually every class action covered by one of the traditional federal fee-shifting statutes. It is a rare § 1983 action where those whose rights have been violated finance the cost of the litigation. Attorneys for the plaintiffs in these types of cases almost always have to advance the cost of the litigation and do not receive any payment for their time until the case is completed. That is simply the nature of the beast. If the delays in reimbursement for costs and payment for services that these cases inevitably entail justified enhancement, there would be an enhancement in almost every case. We know that cannot be, because the Supreme Court has instructed us that we must employ a strong presumption against enhancements and confine them to the rare and exceptional case. Dague,
Particularly instructive on this point is some of the Supreme Court’s reasoning in concluding that there could be no enhancement for the contingency nature of a case — for the risk that the plaintiffs’ attorneys would not be paid at all for the costs they advanced and the time they expended. See Dague,
Finally, we have said that any delay in payment for professional services rendered is offset by the fact that the hourly rates used are those that prevail at the completion of the case instead of the usually lower rates that were in effect at the time the earlier work was done. See Norman,
The third factor was the contingent nature of the case. Enhancing a lodestar based on contingency is flatly forbidden by the Dague decision. The district court was under the mistaken impression that the Dague rule forbids only an enhancement based on contingency alone. Id. at 1288 n. 8. The rule is not so limited. The Supreme Court’s description of the scope of its holding leaves no wiggle room. The Court stated that it was “concluding that no contingency enhancement whatever is compatible with the fee-shifting statutes at issue.” Dague,
Even if we were to go beyond that clear language of the Supreme Court’s command, the reasons it gave for concluding that contingency enhancements are incompatible with the fee-shifting statutes apply with equal force to using contingency as one of several reasons for an enhancement. For example, taking the risk of loss into account both in the lodestar and in an enhancement amounts to double counting the difficulty of the case, id. at 562-63,
In summary, none of the three factors that the district court enumerated as a basis for determining that the professional services rendered by plaintiffs’ counsel were “far superior to what consumers of legal services in the legal marketplace in Atlanta could reasonably expect to receive for the rates used in the lodestar calculation,” Kenny A. III,
4.
Making a further attempt to justify the enhancement, the district court also stated that:
In addition, based on its personal observation of plaintiffs’ counsel’s performance throughout this litigation, the Court finds that the superb quality of their representation far exceeded what could reasonably be expected for the standard hourly rates used to calculate the lodestar. Quite simply, plaintiffs’ counsel brought a higher degree of skill, commitment, dedication, and professionalism to this litigation than the Court has seen displayed by the attorneys in any other case during its 27 years on the bench. The foster children of Fulton and DeKalb Counties were indeed fortunate to have such unparalleled legal representation, and the Court would be remiss if it failed to compensate counsel for this extraordinary level of service to their clients.
Id. at 1288-89. This rationale is little more than a restatement of the district court’s position that the lodestar amount should be enhanced because of the quality of the representation. Two points about that.
First, the district court itself found that plaintiffs’ attorneys had submitted vague
The second, and more fundamental, point about the district court’s reliance on the quality of the representation as a ground for enhancing the lodestar amount is that it amounts to double counting and is contrary to the Supreme Court’s decision in Delaware Valley I. As we have already explained, in that decision the Court reversed an enhancement for superior performance, holding that “the special skill and experience of counsel” and “the quality of representation” are “presumably fully reflected in the lodestar amount, and thus cannot serve as independent bases for increasing the basic fee award.” Delaware Valley I,
The final reason the district court gave for the $4.5 million enhancement was that “plaintiffs’ success in this case was truly exceptional.” Kenny A. III,
Stated from the other direction, the fee-shifting statutes are not designed to provide representation that will win plaintiffs more than a correct application of substantive and remedial law entitles them to receive. Their purpose is not to provide representation that will secure settlement relief that is more “intricately detailed and comprehensive,” Kenny A. III,
Some of the discussion in the Dague opinion is useful in understanding why enhancements should not be given for merits-exceeding results. As we have recounted, in that case the Supreme Court rejected the idea of enhancements for contingency or risk of loss in part because permitting them would provide attorneys with some incentive to bring relatively meritless claims. Dague,
A result that obtains more or better relief than plaintiffs are entitled to receive under the law is, to the extent it exceeds their entitlement on the merits, analogous to relief on a meritless claim. Just as Dague instructs us that fee awards should not underwrite efforts to obtain relief where none is due under the law, neither should they underwrite efforts to receive more or better relief than that due under the law. Just as the societal costs for fee awards for non-meritorious claims are too high, so also are they too high for results that exceed what the law allows. Just as encouraging non-meritorious claims cannot have been an objective of the fee-shifting provisions, neither can encouraging results that go beyond what the law allows have been an objective.
To put it in an either-or manner, superb results are either what a fair application of the law produces, which means that they are not truly “superb,” or they are results that exceed what the law allows and for that reason are beyond the purpose of the fee-shifting statutes. Those statutes are designed to provide a reasonable fee for a reasonable result, not an extraordinary fee
Look at it this way. A merits-exceeding result for plaintiffs must be the product of one, or some combination, of the following factors: superior lawyering by plaintiffs’ counsel, bad lawyering by defendants’ counsel, poor decision making by the court, or dumb luck. The Supreme Court held in Delaware Valley I that superior lawyering by the plaintiffs’ counsel is not a proper basis for an enhancement. Delaware Valley I,
5.
The district court relied to some extent on four of the five affidavits that the plaintiffs’ attorneys in this case obtained from their friends who do similar work. Kenny A. III,
Aside from the need to support those who support them, the lawyers who signed the affidavits have a financial interest in keeping the fee award in this case and every case like it as high as possible. The higher this fee award is the more useful it will be as precedent for the lawyer signing the affidavit when he seeks a high fee award in his own cases. The affiants are anything but “disinterested.”
Aside from the obvious self-interest of the affiants, the contents of the affidavits that were filed in this case are also flawed in other ways. For example, in each of them the affiant solemnly swore that the amount of compensable time claimed in this case was “reasonable,”
All five of the affidavits urged the district court to enhance the fee award based on the fact that plaintiffs’ counsel advanced the cost of expenses.
Were it otherwise, there would be no end to enhancements and no limit to them. In every case where an established member of the Bar seeks an enhancement he will be able to get his colleagues who are interested in keeping fee awards as high as possible to sign affidavits stating that the only thing that will ensure adequate representation in cases like that one is a multimillion dollar enhancement. And some district court judges will credit those interested affiants as “disinterested attorneys.”
But none of this and none of the multiple, specific, and serious defects in the affidavits that were filed in this case should obscure the more fundamental point, which is that enhancements for superior performance and results are not permissible, no matter how much the interested members of this particular segment of the Bar might want them to be. See supra at 1228-31. Supreme Court decisions cannot be overruled by affidavits.
6.
Our conclusion that the enhancement to the lodestar amount in this case was improper does not mean that one will never be appropriate under any circumstances. If, as the Supreme Court has instructed us, the proper calculation of the lodestar amount leaves “very little room” for enhancements, which may be proper only in “rare” and “exceptional” cases, Delaware Valley I,
Suppose, for example, that an attorney’s representation vindicates the federal rights of an unpopular client and as a result that attorney suffers a loss of standing in the community which damages his practice and income. The kind of situation we have in mind was discussed by Judge Frank M. Johnson, Jr., albeit not on the issue of enhancing a lodestar amount. Actually, the discussion came before the enactment of the § 1988 fee-shifting statute and was in the context of deciding the amount of fees that should be awarded by the court through the exercise of its equitable power. NAACP v. Allen,
[A] lawyer representing black plaintiffs in an employment discrimination case, or in any civil rights litigation, is likely to suffer social, political and community ostracism. This likelihood is multiplied, of course, in a case such as the present onein which plaintiffs have sued high-ranking state officials and have alleged and proved racial discrimination. Even more damaging to an attorney involved in such litigation is the probability that he will be estranged from other members of his profession who are unwilling to participate in, or even lend moral support to, suits seeking to vindicate the public good.
Id. at 710.
We hope that three-and-a-half decades after those words were written in the Allen case attorneys who represent victims of racial discrimination no longer suffer social, political, or professional ostracism. But attorneys who represent other types of plaintiffs might. It could happen to an attorney who represents a pedophile attacking a sexual offender registration law on Due Process grounds, or perhaps to an attorney in a small Bible Belt town who succeeds in having a popular public religious practice enjoined as contrary to the Establishment Clause. Whether those circumstances, and others we have not mentioned, would be proper ones for enhancing the lodestar amount are issues for other days. For now it is enough to recognize the possibility and to point out that the “rare” and “exceptional” circumstances that we have mentioned would be more likely to fit within the “very little room” that the Supreme Court has told us is left for enhancements. Delaware Valley I,
Representing children who find themselves in foster care is not the same as representing activist atheists in the Bible Belt or pedophiles anywhere. The plaintiffs’ attorneys in this case do not, and reasonably could not, claim to have suffered any social or professional ostracism, nor do they contend that their victory here will somehow damage their legal practice. To the contrary, vindicating the rights of helpless children is the kind of accomplishment that brings professional accolades and enhances one’s standing in the community. It is to that type of enhancement, instead of a monetary one, that the attorneys must look for any satisfaction beyond the $6,012,802.90 they are already receiving for their work in this case.
And Mr. Bramlett, for one, has done so. The “Attorney Profile” on his law firm’s website boasted of his “track record of results in class action litigation,” listing three of his biggest successes.
Prosecution of class action in conjunction with New York’s Children’s Rights, Inc. resulting in systematic reform of State of Georgia’s dysfunctional foster care system and establishing that foster children have a right to counsel.
The federal judge who presided over the case for Georgia’s foster children wrote of the work performed by the legal team led by Jeff and Marcia Robinson Lowry of New York’s Childrens’ Rights, Inc.: “[Plaintiffs’ counsel brought a higher degree of skill, commitment, dedication and professionalism to this litigation than the Court has seen displayed by the attorneys in any othercase during its 27 years on the bench .... 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.” 454 F.Supp.2d at 1289-90 .[18 ]
The profile also recounted that Mr. Bram-lett received the Elbert P. Tuttle Jurisprudence Award from the Anti-Defamation League “for dedication to justice and fair treatment for all people.”
The other co-lead counsel for the foster children in this case has not suffered any reduction in professional standing or livelihood because of her work in it, either. To the contrary, what she did in this case has furthered her credentials, her reputation, her chosen lifework, and the purpose of her organization. Marcia Robinson Lowry has litigated on behalf of children’s welfare for more than a quarter of a century. She has “directed major litigation efforts in jurisdictions throughout the United States designed to promote major reform of child welfare systems.” (R32:495:Ex.B:2.)
Ms. Lowry founded and is the Executive Director of the Children’s Rights Group, a non-profit organization that advocates and litigates on behalf of children. The organization’s website explains that, among other things, “Children’s Rights files class action lawsuits on behalf of classes of abused and neglected children who have contact with public child welfare systems, to enforce their legal rights. The goal of these lawsuits is to improve the functioning of state child welfare systems ... .”
As with any organization that is largely dependent upon donations and grants, Children’s Rights cannot afford to hide its achievements, and it has not been shy about what it achieved in this case. In at least four press releases over the course of the lawsuit, Children’s Rights trumpeted what it had done and was doing for “some of Atlanta’s most vulnerable citizens,”
The point is not that Ms. Lowry and her organization don’t have every reason to boast about their role in this case. The point is that their work in this case is something that is in their interest to boast about. It is not something that requires more than the $495 per hour that Ms. Lowry received to attract her and her organization to this case. This area of the law is the sea in which they sail and class action lawsuits are their chosen vessel. It is what they do. They submitted three-fourths of the billable hours in this lawsuit. Except for the relatively insignificant travel hours, they were paid at the high hourly rates they demanded. To suggest that the prospect of a huge monetary bonus was needed to attract them to this lawsuit is not only absurd, but it also demeans the dedication of Ms. Lowry and her organization. Cf. Delaware Valley I,
The multi-million dollar enhancement, over and beyond the full lodestar sum that Ms. Lowry and her organization received, amounts to an involuntary, federal court ordered contribution from the taxpayers of Georgia to a non-profit organization. The perverse irony of the seven figure, court ordered gratuity in this case is that it reduces the amount of state funds available to care for what Children’s Rights itself has described as some of Georgia’s “most vulnerable citizens,” the very group that the organization is dedicated to protecting.
For all of the reasons we have discussed, were we free to decide the issue we would readily conclude that the district court’s award of a $4,500,000 enhancement to the lodestar amount in this case is an abuse of discretion, because it is based on an erroneous view of the law and reflects a clear error of judgment.
C.
Unfortunately, under the prior panel precedent rule we are not free to decide the enhancement issue, but must instead follow this Court’s earlier decisions in NAACP v. City of Evergreen,
In the NAACP case, the plaintiffs’ attorneys had requested a 50 percent enhancement of the lodestar amount, which was based, in part, on “the assertion that the relief obtained was of great benefit to the black citizens of Evergreen and represented exceptional success.” NAACP,
[T]he district court should make findings with regard to each of the grounds put forward by the NAACP as warranting an enhancement and relate those findings to its ultimate determination of the issue. We note, however, in remanding, that the Supreme Court has held that the fact the results obtained would be of far-reaching significance to a large number of people usually is not grounds for enhancement, because the results obtained, as one of the Johnson factors, normally will be subsumed in the calculation of a reasonable fee and, therefore, usually should not provide an independent basis for increasing the fee award. Blum, v. Stenson,465 U.S. 886 , 900,104 S.Ct. 1541 , 1549-50,79 L.Ed.2d 891 (1984). The award may be enhanced, however, “in some cases of exceptional success.” Id. at 897,104 S.Ct. at 1548 (quoting Hensley,461 U.S. at 435 ,103 S.Ct. at 1940 ). The district court’s reconsideration of the appropriateness of an enhancement based on this factor should be made in light of these principles.FN6
NAACP,
In Norman the attorneys for the prevailing civil rights plaintiffs had requested a substantial enhancement of the lodestar amount based in part on the “quality of representation provided.” Norman,
In doing so, the Norman Court explained that “[i]f the results obtained were exceptional, then some enhancement of the lodestar might be called for.” Id. at 1302 (citing Delaware Valley I,
Any enhancement begins with a finding that the results were exceptional; the district court has also failed to address this issue with reference to the extant substantive law. Accordingly, we remand for reconsideration. In adjusting the lodestar, as has been noted earlier, the court must take into account the significance of the results obtained in relation to those sought. It is at this point that the court may wish to make adjustments for unsuccessful theories and dismissal of the case as to some parties.
Even if the court found the results obtained to be exceptional, no enhancement for these results would be justified unless the court also finds that class counsel’s representation was superior to that which would have been expected considering the rates requested. Blum,465 U.S. at 899 ,104 S.Ct. at 1549 .
Norman,
The NAACP and Norman decisions both vacated district court orders denying enhancements for superior results and issued remand instructions. Those instructions, especially the ones in Norman, constitute a holding that superior results coupled with superior performance can be the basis for an enhancement of the lodestar amount. For the reasons we have already explained at length, we are convinced that holding is wrong and conflicts with relevant Supreme Court decisions.
Nonetheless, as a later panel we are bound to follow it. Hurth v. Mitchem,
Our colleague, Judge Wilson, is of the opinion that this Court’s decisions in NAACP and Norman are correct, that enhancements of the lodestar amount can and should be allowed for the quality of representation and the exceptional nature of the results obtained. While we respect those views, we are unpersuaded by them.
The concurring opinion essentially adopts the position of the Sixth Circuit in Geier v. Sundquist,
Secondly, Geier and the concurring opinion are also wrong about the context in which the Supreme Court told us in Delaware Valley I that enhancements for superior performance and results are unnecessary. That key statement is not confined to a recitation of the Blum case. It is part of an additional discussion that follows one in which the Court had stated that the federal fee-shifting statutes “were not designed as a form of economic relief to improve the financial lot of attorneys.” Delaware Valley I,
Immediately after explaining that, in the next paragraph of the Delaware Valley I opinion, the Supreme Court made the statements that the concurring opinion and Geier would have us disregard. That paragraph, in its entirety, reads as follows:
Moreover, when an attorney first accepts a case and agrees to represent the client, he obligates himself to perform to the best of his ability and to produce the best possible results commensurate with his skill and his client’s interests. Calculating the fee award in a manner that accounts for these factors, either in determining the reasonable number of hours expended on the litigation or in setting the reasonable hourly rate, thus adequately compensates the attorney, and leaves very little room for enhancing the award based on his post-engagement performance. In short, the lodestar figure includes most, if not all, of the relevant factors constituting a “reasonable” attorney’s fee, and it is unnecessary to enhance the fee for superior performance in order to serve the statutory purpose of enabling plaintiffs to secure legal assistance.
Id. at 565-66,
That statement is not dicta. It might have been if the Court had somehow affirmed the fee enhancement for superior performance in Delaware Valley I, but the Court did not do that. Instead, the Court reversed the fee award because of the enhancement, stating in the very next sentence after the quoted paragraph: “With this teaching from our prior cases in mind, we sustain the Commonwealth’s contention that the lower courts erred in increasing the fee award to Delaware Valley in Phase V based on the ‘superior quality’ of counsel’s performance.” Id. at 566,
Even if the first holding stated in the Delaware Valley I opinion, which is that fee enhancements for superior performance and exceptional results are unnecessary, is viewed as one of two alternative holdings, we are still required to follow it. See Massachusetts v. United States,
The opinions concluding that enhancements for those reasons are appropriate also fail to mention, much less grapple with, the part of the Dague decision that discusses enhancements related to the merits of the federal claims that have been vindicated in the lawsuit. As we have already pointed out, see supra at 1227-28, in the course of rejecting any enhancement to fee awards based on contingency, the Supreme Court unequivocally concluded in Dague that enhancements should not be granted based on the legal and factual merits of the claim or the difficulty of establishing those merits. Dague,
Of course, this Court sitting en banc, or the Supreme Court, can overrule any prior decisions of this Court. Unless and until this Court does overrule NAACP and Norman, we are constrained to let stand the $4,500,000 enhancement to the lodestar amount that is included in the district court’s judgment in this case.
VII.
AFFIRMED.
Notes
. Robert M. Sharp, The Lore and Legends of Wall Street 233 (1989).
. The defendants did object in the district court that the hourly rates requested were too high, but they have not raised that as an issue on appeal. Accordingly, we have no occasion to pass on that matter, but we do not mean to
. The views expressed in Parts I-V and Part VII of this opinion represent the views of a majority of the Court, consisting of Judges Carnes and Hill. The views expressed in this part, Part VI, of this opinion represent the views of the author of this opinion alone. The views of Judge Hill on the question addressed in this part are expressed in his separate concurring opinion. The views of Judge Wilson are expressed in his separate concurring opinion.
. In Delaware Valley I, the Court reviewed an attorneys’ fees award that was ordered pursuant to the Clean Air Act § 304(d), 42 U.S.C. § 7604(d). Delaware Valley I,
. The fees in Dague were awarded pursuant to the Solid Waste Disposal Act § 7002(e), 42 U.S.C. § 6972(e), and the Clean Water Act § 505(d), 33 U.S.C. § 1365(d). Dague,
. A lodestar enhancement cannot be based on contingency alone. City of Burlington v. Dague,
. The district court did cut the hourly rates for travel time in half, but not in order to lower the rates. Instead, the reduction was the court’s way of correcting for the attorneys' excessive billing of time. Kenny A. III,
. The Court in Delaware Valley I also said that "[b]ecause considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate, the overall quality of performance ordinarily should not be used to adjust the lodestar, thus removing any danger of 'double counting.' ” Delaware Valley I,
. It is unclear why, in its discussion of the affidavits, the district court omitted any discussion of the one signed by Ralph Goldberg. See Kenny A. III,
Four of the five affidavits indicate that they are from attorneys who practice regularly as plaintiffs' lawyers depending on attorneys’ fee awards. The lone exception is John Chandler, whose affidavit indicates that although most of his work has been on the defense side he has also served as counsel for some plaintiffs’ classes.
. Court: Who selected those lawyers who served as experts?
Bramlett: I sought those witnesses out. I mean the Court didn't say—
Court: I would be shocked if you told me you had never filed an affidavit for one of them.
Bramlett: You would be shocked and that would be incorrect. But, but the fact is that all four of these lawyers are highly experienced, highly competent, have practiced law in the Atlanta market— Court: And highly interested in keeping the rates up and the multipliers as high as possible—
Bramlett: Ah.
.Judge Wilson's concurring opinion states that “[i]t cannot be reasonably contended that the able and experienced district judge in this case never considered the possibility that the affiants ... could derive an indirect benefit
. (R32:495:Ex.F:4) (affidavit of John Chandler); (R32:495:Ex.G:4) (affidavit of Henry D. Fellows, Jr.); (R32:495:Ex.H:4) (affidavit of James C. Rawls).
. (R32:495:Ex.E:4-5) (affidavit of Ralph Goldberg).
. (R32:495:Ex.D:5) (affidavit of Ralph I. Knowles, Jr.) (emphasis omitted).
. (R32:495:Ex.D:6-8, 11) (affidavit of Ralph I. Knowles, Jr.); (R32:495:Ex.E:5-6) (affidavit of Ralph Goldberg); (R32:495:Ex.F:4-5) (affidavit of John Chandler); (R32:495:Ex.G:4-5) (affidavit of Henry D. Fellows, Jr.); (R32:495:Ex.H:4-5) (affidavit of James C. Rawls).
. (R32:495:Ex.D:6-8, 11) (affidavit of Ralph I. Knowles, Jr.); (R32:495:Ex.E:5-6) (affidavit of Ralph Goldberg); (R32:495:Ex.F:4-5) (affidavit of John Chandler); (R32:495:Ex.G:4-5) (affidavit of Henry D. Fellows, Jr.); (R32:495:Ex.H:4-5) (affidavit of James C. Rawls).
. (R32:495:Ex.D:8) (affidavit of Ralph I. Knowles, Jr.); (R32:495:Ex.F:5) (affidavit of John Chandler); (R32:495:Ex.G:4-5) (affidavit of Henry D. Fellows, Jr.); (R32:495:Ex.H:5) (affidavit of James C. Rawls).
. Bondurant, Mixson & Elmore LLP, Jeffrey O. Bramlett Attorney Profile, http://www. atlantageorgiatriallawyers./attorneys/business _torts_lawyer_bramlett.html (last visited Dec. 8, 2007).
. Bondurant, Mixson & Elmore LLP, Jeffrey O. Bramlett Attorney Profile, http://www. atlantageorgiatriallawyers.com/attorneys/ business_torts_lawyer_bramlett.html (last visited Dec. 8, 2007).
. Bondurant, Mixson & Elmore LLP, Jeffrey O. Bramlett Attorney Profile, http://www. atlantageorgiatriallawyers.com/attorneys/ business_torts_lawyer_bramlett.html (last visited Dec. 8, 2007).
. Bondurant, Mixson & Elmore LLP, Jeffrey O. Bramlett Attorney Profile, http://www. atIantageorgiatriallawyers.com/attorneys/ business_torts_lawyer_bramlett.html (last visited Dec. 8, 2007).
. Children’s Rights, Frequently Asked Questions, http://www.childrensrights.org/site/Page Server?pagename=faq# Lawsuit (last visited June 5, 2008).
. Press Release, Children's Rights, New Settlement Guarantees the Right to Legal Counsel for Abused and Neglected Children in De-Kalb County, Georgia, http://www.childrens rights.org/pdfs/press_releases/DeKalbCounty Settle3% 20231.pdf (last visited June 5, 2008)
. Press Release, Children’s Rights, Settlement of Class-Action Lawsuit Mandates Sweeping Reform of Foster Care in Atlanta, Georgia (July 5, 2005), http://www.childrens rights.org/pdfs/press_releases/07-05-05.pdf (last visited June 5, 2008).
. Press Release, Children's Rights, Inc., In First Ruling of its Kind in Nation, Federal Judge in Georgia Rules Abused and Neglected Children Have Right to an Attorney While in State Custody (Feb. 8, 2005), at http://www. childrensrights. org/pdfs/press_releases/02-08-05.pdf (last visited June 5, 2008).
. Press Release, Children's Rights, Inc., Landmark Settlement Guarantees the Right to Legal Counsel for Abused and Neglected Children in Atlanta, Georgia (Feb. 13, 2006), at http://www.childrensrights.org/pdfs/press_ releases/3197_001.pdf (last visited June 5, 2008).
. Children's Rights, Inc., Annual Report, at 4 (2006-2007), http://www.childrensrights. org/pdfs/Annual% 20Report% 202006-2007. pdf (last visited June 5, 2008).
. Children’s Rights, Inc., Annual Report, at 5 (2006-2007), http://www.childrensrights. org/pdfs/Annual% 20Report% 202006-2007. pdf (last visited June 5, 2008).
. The basic assumption of Blum, however, is that the district court will have taken factors such as the benefit obtained into account in its initial determination of the reasonable fee. There is no indication that the district court has done so in this case. In fact, it appears that the district court limited its consideration of the results obtained to its determination that the prevailing and unsuccessful claims were separable. On remand, the district court should take into account all relevant considerations put forth by the NAACP in determining the effect of the results obtained, as well as the effect of the other Johnson factors, on its initial calculation of a reasonable attorney's fee. It should then consider whether the NAACP has shown grounds for an enhancement of that initial calculation.
. Both Judges Wilson and Hill have authored concurring opinions in this case. See supra at 1220 n. 3. References in this opinion to “the concurring opinion” are to Judge Wilson’s.
. The concurring opinion cites six additional cases from other circuits in support of its position that the district court may enhance the lodestar based on the quality of the representation and superior results: the Second Circuit’s decision in Quaratino v. Tiffany & Co.,
For one thing, none of them actually holds that the lodestar may be enhanced based on the quality of representation. Indeed the Shipes decision rejected the district court's enhancement on that ground, holding that ”[e]ven though Shipes's counsel presented extensive statistical data with competence, nothing less should be expected of counsel; consequently, this factor alone does not support enhancement.” Shipes,
Because the Quaratino case did not even involve, directly or indirectly, an enhancement of any type, Quaratino,
Finally, none of the opinions from other circuits in those six cases engages in an extended discussion of the Supreme Court’s Delaware Valley I and Dague opinions, nor do they confront the Supreme Court’s reasoning in those two decisions, reasoning that is inconsistent with enhancements for superior representation and results.
. As we explained earlier in this opinion, the Court carried over for reargument the next term the issue of whether an enhancement for contingency risk was proper. See Delaware Valley I,
. On a related point, the concurring opinion’s reliance on our own decision in Villano, is misplaced. The Villano case had nothing to do with fee enhancements. Instead, it is a case in which the district court actually reduced the lodestar amount because the plaintiff did not prevail on all claims or against all of the defendants, and did not recover all of the damages he was seeking. Villano,
But to say, as Villano does, that a fee award should not be reduced below the lodestar amount for partial success without considering all aspects of the success is one thing. To say, as the concurring opinion in this case does, that the lodestar should be increased for success if the public gained some benefit from having federal rights vindicated is an entirely different thing. Indeed, if public benefit through vindication of federal rights was enough to justify an enhancement of the lodestar amount, there would be an enhancement in every single fee case. There can be no fee award under § 1988 and its statutory cousins unless plaintiff’s counsel has obtained a judgment establishing that some federal statutory or constitutional right has been violated. Every judgment that will support a fee award will have benefitted the public by vindicating federal rights and serving as a deterrence to future violations. Therefore, under the concurring opinion's logic, every fee award should be increased as a reward for success
Concurrence Opinion
specially concurring:
I agree with the decision to uphold the fee award in this ease. I do not, however, share my colleague Judge Carnes’ view that the district court’s decision and our own prior precedents in this area are inconsistent with the teachings of the Supreme Court. The Court has not held that quality of representation and exceptional results can never be grounds for an upward adjustment of the lodestar figure. To the contrary, the Court has allowed for the possibility of an enhancement based on these factors where, as here, specific record evidence indicates that the lodestar amount is insufficient to provide a reasonable fee. Accordingly, I concur in the result only.
I.
In Blum v. Stenson,
With respect to the results obtained, the Court said that this factor likewise will “generally ... be subsumed within other factors used to calculate a reasonable fee,” and therefore “it normally should not provide an independent basis for increasing the fee award.” Id. at 900,
Blum thus establishes that enhancements for quality of representation and exceptional results, while not warranted in most cases, are permissible where supported by specific evidence. Therefore, to accept Judge Carnes’ view that these factors can never be grounds for an enhancement, one would have to conclude that the Supreme Court has repudiated that aspect of Blum. I find little support for that proposition. Judge Carnes’ opinion cites language in Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air (Delaware Valley I),
More significantly, the statement is not a holding of the Court. It is merely part of a discussion summarizing Blum and citing the case with approval. A review of the discussion as a whole makes clear that the Court was not purporting to alter Blum in any way. Indeed, in the sentence immediately following the language at issue, the Court restated Blum’s holding that upward adjustments are proper “in certain ‘rare’ and ‘exceptional’ cases, supported by both ‘specific evidence’ on the record and detailed findings by the lower courts.” Id. (quoting Blum,
The portions of Delaware Valley I setting forth the Court’s holding confirm this interpretation. In concluding that the enhancement awarded by the district court was improper, the Court discussed the “quality of representation” factor in non-categorical terms consistent with Blum: “Because considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate, the overall quality of performance ordinarily should not be used to adjust the lodestar, thus removing any danger of ‘double counting.’ ” Delaware Valley I,
It was this lack of evidentiary support— rather than a blanket rule against consideration of the quality of representation or the results obtained — that compelled reversal, as the Court repeatedly made clear. As to the attorneys’ performance, the Court stated: “[V]iewing the evidence submitted by Delaware Valley to support its petition for attorney’s fees, there is no indication as to why the lodestar did not provide a reasonable fee award reflecting the quality of representation .... ” Id. The same conclusion applied to the results obtained: “Delaware Valley presented no specific evidence as to what made the results it obtained ... so ‘outstanding,’ nor did it provide any indication that the lodestar figure for this portion of the case was far below awards made in similar cases where the court found equally superior quality of performance.” Id. at 567-68,
The Court left little doubt that these considerations were critical to its disposition of the case. Using language virtually identical to that of Blum, the Court concluded: “In the absence of such evidence and such findings, we find no reason to increase the fee award ... for the quality of representation.” Id. at 568,
These statements undermine any suggestion that Delaware Valley I precludes
Judge Carnes’ opinion argues that we may ignore the Court’s statements regarding the record because they are merely alternative holdings. However, that view fails to account for the statement that immediately precedes the Court’s record analysis: “Because considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate, the overall quality of performance ordinarily should not be used to adjust the lodestar .... ”
Judge Carnes’ opinion also relies on language in which the Court described enhancements for superior performance as “unnecessary” for purposes of enabling plaintiffs to secure legal assistance. See id. at 566,
Other circuits share our understanding of the Court’s teachings. See, e.g., Geier v. Sundquist,
II.
In this case, the district court made detailed findings as to why the lodestar figure did not fully reflect the quality of representation and the exceptional results achieved. As to the former, the court found that “the quality of service rendered by class counsel, including their extraordinary commitment of capital resources, was far superior to what consumers of legal services in the legal marketplace in Atlanta could reasonably expect to receive for the rates used in the lodestar calculation.” Kenny A. ex rel. Winn v. Perdue (Kenny A. III),
In the current Atlanta market for legal services, the Standard Hourly Rates specified in the Declarations of Marcia Robinson Lowry and Jeffrey O. Bram-lett would be generally inadequate and insufficient to induce lawyers of comparable skill, judgment, professional reputation and experience to perform the necessary services to prosecute a case of this magnitude on terms where the lawyers are not paid on an ongoing basis as the work is being performed, are required to advance case expenses of $1.7 million over a three year period with no ongoing reimbursement, and the lawyers’ ability to recover a fee and expense reimbursement are completely contingent on the outcome of the case.
[Fellows Deck, R32:495:Ex.G:7; see also Knowles Deck, R32:495:Ex.D:ll; Chandler Deck, R32:495:Ex.F:7; Rawls Deck, R32:495:Ex.H:7.] In the view of three of these attorneys, a 1.5-2 multiplier was necessary to bring the fee award into line with awards in comparable class action litiga-tions in the Atlanta market:
Taking into account the work required to achieve the results obtained for the plaintiff class in this case, the level of expense and risk entailed for class counsel to prosecute this case over a three-year period with recovery of fee and investment in advanced case expenses, and fees actually awarded by courts in class actions in this district in securities, antitrust and. other types of non-civil rights cases presenting comparable complexity and risk, a multiplier of no less than 1.5-2 times the lodestar amount ... would yield a reasonable fee consistent with prevailing prices in the Atlanta legal market for legal services of comparable value.
[Fellows Decl., R32:495:Ex.G:8; see also Chandler Decl., R32:495:Ex.F:8; Rawls Decl., R32:495:Ex.H:8.]
Judge Carnes’ opinion discounts these affidavits on the ground that the factors identified in them — the lack of ongoing payment, the advancement of case expenses, and the contingent nature of the fee recovery and reimbursement — cannot support an enhancement. I agree with that conclusion insofar as it pertains to contingency. See City of Burlington v. Dague, 505 U.S. 557, 567,
Judge Carnes’ opinion also faults the district court for failing to give sufficient weight to the testifying attorneys’ own interest in securing a high fee award for plaintiffs’ counsel in this case. But determinations as to the credibility and the weight of testimonial evidence are clearly within the purview of the district court in these circumstances. See Childrey v. Bennett,
In addition to the affidavits, the district court took into account its personal observations of the attorneys’ performance in this case:
[T]he court finds that the superb quality of [counsel’s] representation far exceeded what could reasonably be expected for the standard hourly rates used to calculate the lodestar. Quite simply, plaintiffs’ counsel brought a higher degree of skill, commitment, dedication, and professionalism to this litigation than the Court has seen displayed by the attorneys in any other case during its 27 years on the bench. The foster children of Fulton and DeKalb Counties were indeed fortunate to have such unparalleled legal representation, and the Court would be remiss if it failed to compensate counsel for this extraordinary level of service to their clients.
Kenny A. III,
In the area of fee awards, it is well established that “[t]he court ... is itself an expert on the question and may consider its own knowledge and experience concerning reasonable and proper fees and may form an independent judgment ... as to value.” Norman,
As to the results obtained, the court found that the plaintiffs’ success was “truly exceptional.” Kenny A. III,
Judge Carnes’ opinion takes issue with the court’s statement that the remedial measures established by the Consent Decree go beyond the relief the plaintiffs likely would have obtained had they prevailed at trial. We have recognized, however, that the unexpected nature of a result is relevant to the determination of whether it is exceptional. See Norman,
Moreover, other courts have recognized that results similar to those obtained here can justify an enhancement. For example, in Hyatt v. Apfel,
Likewise, in Shipes v. Trinity Industries,
Additionally, we have recognized that the public benefit created by a lawsuit is an important factor in the determination of a reasonable fee award. In Villano v. City of Boynton Beach,
On remand, the district court must examine the qualitative value of [plaintiffs] successes. In doing so, the court needs to account for the vital role private litigation plays in the enforcement of civil rights, the difficulties involved in sustaining those lawsuits, the heightened importance of such lawsuits when the defendant is a public body, and the public benefit that occurs when those lawsuits ultimately vindicate a constitutional right.
Villano,
III.
I find no abuse of discretion in the district court’s fee award. The court made detailed findings as to why the lodestar did not fully reflect the quality of representation and the results achieved in this case, and those findings are supported by specific evidence in the record. Because I conclude that the district court’s decision is consistent with controlling Supreme Court and Eleventh Circuit precedents, I concur only in the result.
. See Blum,
. Judge Carnes’ opinion also asserts that enhancements for superior performance cannot be reconciled with City of Burlington v. Dague,
. Since NAACP and Norman were decided, we have repeatedly reiterated their understanding of the Court’s teachings. See Ass’n of Disabled Ams. v. Neptune Designs, Inc.,
. Judge Carnes’ opinion argues that the public benefit created by a lawsuit cannot be a factor supporting an enhancement because every suit that vindicates a federal right benefits the public in some way. Therefore, he argues, taking the public benefit into account would result in an enhancement in every successful fee case. I disagree. The fact that every vindication of federal rights confers some public benefit does not mean that the benefit is equal in every case. The present case underscores this point. The district court’s opinion demonstrates that the public benefit created here was truly exceptional, far exceeding that achieved in the majority of cases of this type. See Kenny A. III,
Concurrence Opinion
concurring:
I concur in the judgment. The enhancement by the district court is due to be affirmed because we are bound by the prior cases of our court, NAACP v. City of Evergreen,
I do not add anything to my colleagues’ discussions of the holding and opinions in those cases other than to acknowledge that they are scholarly and well done.
No doubt these additional writings will be of interest to jurists who might wish to pursue the matter in further proceedings, should any arise.