Lead Opinion
GIBBONS, J., dеlivered the opinion of the court in which MOORE and
OPINION
In 2006, Plaintiffs-appellees/Cross-appellants Northeast Ohio Coalition for the Homeless (“NEOCH”) and Service Employees International Union, Local 1199 (“SEIU”) brought an action under 42 U.S.C. § 1983 against then Ohio Secretary of State J. Kenneth Blackwell challenging several provisions of Ohio’s 2006 Voter ID law. The parties negotiated consent orders in 2006 and 2008. In 2009, NEOCH and SEIU filed a motion for attorneys’ fees with respect to the 2008 orders, which the district court granted. The Ohio Secretary of State appealed the fee and cost award, and the parties ultimately negotiated a consent decree signed by the district court in April 2010. In June 2010, the plaintiffs filed another motion for attorneys’ fees and costs, this time for work рerformed (1) regarding prior motions for attorneys’ fees submitted in the litigation, (2) during the appeal of the award of attorneys’ fees, and (3) negotiating the consent decree. The district court granted the motion in part, but because it found that the motion regarded a supplemental fee request, it reduced the fee award to three percent of the award granted in the main case pursuant to Coulter v. Tennessee,
On appeal, the State of Ohio and the Ohio Secretary of State argue that the 2010 consent decree was a settlement in full of all of the plaintiffs’ claims, thus waiving any subsequent claim for further attorneys’ fees. The plaintiffs eross-appeal, arguing that the district court erred in applying Coulter to limit their supplemental fee award. For the following reasons, we affirm.
I.
This appeal over an award of attоrneys’ fees stems from litigation over Ohio’s voter identification laws, passed in 2006, which culminated in a consent decree entered into by the parties in 2010. Although the parties’ appeal and cross-appeal focus on the consent decree and the district court’s grant of the motion for attorneys’ fees filed after the consent decree was entered, the parties’ arguments are premised in part on an understanding of the factual and procedural background leading up to the consent decree.
In 2006, NEOCH and SEIU brought an action under 42 U.S.C. § 1983 against then Ohio Secretary of State J. Kenneth Blackwell in his official capacity seeking to have portions of the Ohio “new voter-identification laws” declared unconstitutional. On November 1, 2006, the parties entered into a consent order, which gоverned the November 2006 general election and provided specific guidance and clarification to County Boards of Elections regarding identification procedures. An enforcement order was entered on November 14, 2006, after it was discovered that some Board of Election employees failed to follow the provisions of the consent order.
On January 4, 2008, the plaintiffs filed a motion under 42 U.S.C. § 1988 and 28 U.S.C. §§ 1821 and 1920 for attorneys’ fees and costs which were incurred in relation to the November 2006 consent order and the November 2006 enforcement order. Over the defendants’
Prior to the November 2008 election, the plaintiffs sought leave to file a proposed supplemental complaint, citing concerns that the County Boards of Elections would continue to apply inconsistent standards to their evaluation of provisional ballots, and also requested a preliminary injunction to prevent the enforcement of the voter identification laws in the 2008 election. In order to settle the ongoing litigation, then Ohio Secretary of State Jennifer Brunner issued Directive 2008-101, which provided guidelines for Ohio’s “boards of election in processing and counting provisional ballots.” By agreement of the parties, the district court issued an order on October 24, 2008, which adopted the directive. The court also issued an additional order on October 27, 2008, which addressed the effect of poll worker error on the counting of provisional ballots and instructions regarding acceptable addresses for persons without a permanent addresses.
On January 20, 2009, the plaintiffs filed their second motion for attorneys’ fees and costs. The second motion requested fees and costs related to procuring the October 2008 orders as well as fees reasonably related to the orders. On July 28, 2009, the district court granted the second motion for attorneys’ fees and costs and also awarded reasonable attorneys’ fees and costs relating to the first motion for fees and costs. In total, the district court awarded $474,418.50 in attorneys’ fees and $29,995.61 in costs and expenses.
The State of Ohio, as intervenor-defendant, appealed the award of attorneys’ fees to this court. The parties subsequently began to work with the office of the circuit mediator in an effort to resolve the aрpeal.
The parties, desiring that this action be settled by an appropriate Consent Decree ... and without the burden of protracted litigation, agree to the jurisdiction of this Court over the parties and the subject matter of this action. Subject to this Court’s approval" of this Decree, and subject to "the continuing validity of this Decree if it or its terms are challenged in any other court, the parties waive a hearing and findings of fact and conclusions of law on all issues, and further agree to the entry of this Decree as final and binding among and between themselves as to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint, and the matters resolved in this Decree.
This Decree, being entered with the consent of the parties, shall in no way constitute an adjudication or finding on the merits of Case No. 2:06-CV-896, nor be construed as an admission by the Defendants of any wrongdoing or violation of any applicable federal or state law or regulation.
In resolution of this action, the parties hereby AGREE to, and the Court expressly APPROVES, ENTERS, and ORDERS, the following....
The consent decree provided for general injunctive relief, including (1) the adoption of Directive 2008-80 issued by the Ohio Secretary of State as an order of the district court, and (2) the agreement that the Secretary of State would instruct the
On June 3, 2010, the plaintiffs filed their third motion for attorneys’ fees and costs. The motion requested attorneys’ fees and costs for (1) briefing and arguing the prior fees motions, (2) opposing and settling the appeal of the district court decision granting the prior motions, and (3) “negotiating the April 19, 2010 Consent Decree which terminated th[e] litigation.” The requested fees and costs covered work the attorneys engaged in between January 2009 and April 2010.
The defendants opposed the third motion for attorneys’ fees and costs, arguing that the consent decree was final and binding as to the claims set forth in the complaint, and that as a result, the plaintiffs waived any opportunity to seek additional fees by entering into the consent decree. The defendants submitted affidavits from an attorney in the Secretary of State’s office and an attorney in the Ohio Attorney General’s Office who acted as client contact for the State of Ohio during the settlement negotiations to argue that “inclusion of a final and certain amount of attorneys’ fees was a material term of the complete settlement” and the defendants “would not have agreed to settle this case if the parties had intended to leave the issue of additional attorneys’ fees open or unsettled.” In the alternative, the defendants argued that the motion for fees should be denied or reduced because the requested fees were unreasonable. Specifically, they argued that because the third motion was essentially a request for attorneys’ fees expended in obtaining a prior award of attorneys’ fees (a “fees for fees” request), the fee award should be capped at three percent of the fee award in the mаin case under the rule announced in Coulter v. Tennessee,
On November 30, 2010, the district court granted in part and denied in part the third motion for fees and costs. The district court concluded that the plaintiffs did not waive their right to receive further attorneys’ fees because the parties did not intend the consent decree to be a final disposition of all claims and found that the plaintiffs were entitled to collect an additional fee award. The district court found the requested hours and hourly rates to be reasonable, but agreed with the defendants that the three-percent rule from Coulter should apply to the request for supplemental fees. The court found that “the hours spent at all three stages of this attorneys’ fees case constituted preparation for and litigаtion of the attorneys’ fees case” and that as a result, the entire fee request was subject to Coulter’s three percent rule. The district court therefore awarded fees equivalent to three percent of the award in the main case, for a total supplemental
The defendants appeal the award of fees and costs. The plaintiffs cross-appeal the supplemental fee award.
II.
“A district court’s interpretation of a consent decree or judgment is a matter of law subject to de novo review, and the underlying findings of fact are reviewed for clear error.” Sault Ste. Marie Tribe of Chippewa Indians v. Engler,
III.
A.
The Civil Rights Attorney’s Fees Award Act (the “Fees Act”), 42 U.S.C. § 1988(b), “permits a court in its discretion to award the ‘prevailing party’ in a § 1983 action ‘reasonable’ attorney’s fees as part of the costs.” Pouillon v. Little,
In Jennings, we found that the settlement in question was a final disposition of all claims precluding a later request for attorneys’ fees where, after the monetary settlement was paid, the district court entered a final order dismissing the action “with prejudice” which did not mention costs.
B.
The consent decree does not explicitly refer to attorneys’ fees and costs incurred during the time period claimed in the plaintiffs’ third motion for fees (between January 2009 and April 2010). Instead, it only provides for the payment of “attorneys’ fees that were previously awarded.... ” The issue of attorneys’ fees seems to be an afterthought, included only in a miscellaneous provision of the consent decree, whiсh is largely merits-focused. Indeed, the majority of the consent decree focuses on issues relating to the substantive challenge to the procedures surrounding the implementation of the state voter ID laws and provides for injunctive relief. The consent decree lists the purposes of the decree as ensuring that the “fundamental right to vote is fully protected for registered and qualified voters who lack the identification required by the Ohio Voter ID laws, including indigent and homeless voters,” that the voters not be “required to purchase identification as a condition to exercising their fundamental right to vote,” that the votes be counted “even if they are cast by provisional ballot on Election Day,” and that voters will not be deprived of the right to vote because of differing interpretations of the Provisional Ballot Laws or because of poll worker error. Because the consent decree is overwhelmingly focused on the merits and is silent as to the availability of the attorneys’ fees requested in the third motion, we must consider whether the parties intended the consent decree to operate as a final disposition of all claims. Jennings,
To support their argument that the parties intended the consent decree to be a comprehensive settlement, the defendants argue that the plain language of the decree requires the conclusion that it was a final disposition of all claims because the preamble refers to the desire to settle the “action ... without the burden of protracted litigation” and states that the decree is “final and binding” and that the parties agree to the tеrms of the consent decree “in resolution of this action.” It is true, as defendants argue, that the scope of the consent decree is specifically defined as “final and binding ... as to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint, and the matters resolved in this Decree” and that the plaintiffs did request attorneys’ fees in their complaint. However, the language in the consent decree is distinguishable from the language in McCuiston — where a final disposition of all claims was found — -which
The defendants contend that to distinguish the specific language referring to the decree as “final and binding among and between themselves as to the issues raised in the Plaintiffs’ Complaint and Supplemental Complaint,” from the language in McCuiston, which stated that the stipulated consent judgment was a “final order of the court, disposing of all remaining claims in this action,”
The defendants cite In re Lybarger,
The affidavits submitted by both parties are consistent with each side’s purported intentions regarding attorneys’ fees when negotiating the consent decree. Ohio law allows the consideration of extrinsic evidence regarding an ambiguous term in a contract or consent decree. See Seals v. Gen. Motors Corp.,
The parties also disagree as to the import of the fact that the consent decree contained language allowing for modification, extension, and termination of the decree for good cause, as well as the fact that the decree was only to remain in effect until June 30, 2013. The district court found that because the parties agreed to allow for modification and extension of the agreement, the consent decree was further distinguishable from the сonsent judgment in McCuiston, which “did not allow the parties to seek to modify or extend the terms of the agreement and contained no qualifiers as to the scope of the consent judgment’s terms.” The defendants contend that because a consent decree is a settlement agreement subject to continued judicial oversight, it is standard to include termination dates and that the ability to modify a consent decree should not preclude finding a settlement in full.
It is true that a consent decree is a “settlement agreement subject to continued judicial policing.” Vanguards of Cleveland v. City of Cleveland,
The defendants finally argue that construing the consent decree to .be anything but a final disposition of all claims would set a dangerous precedent because it would make states wary of entering into consent decrees. We disagree with such a broad assertion. The potential impact of our construction is merely to incentivize prudent parties to exercise care in drafting settlement agreements and encourage them to ensure that the language they choose clearly indicates whether they intend a final disposition of all claims. In the consent decree at issue, the defendants could have negotiated for the addition of a single sentence to the miscellaneous provisions section stating that the agreement regarding attorneys’ fees previously awarded constitutes the entire agreement regarding fees and costs and that it disposes of any and all existing or future requests for attorneys’ fees and costs, or the defendants could have requested language in the preamble that clearly states that all remaining claims are extinguished by the consent decree. They simply did not do so.
Accordingly, because the language of the consent decree contains both broad language and language limiting its scope, it is distinguishable from other consent decrees or settlements where a final disposition of all claims has been found on the basis of clear and broad language. The affidavits in the record do not clarify matters so as to permit a single inference that the parties intended a final disposition of all claims. As a result, we conclude that the plaintiffs did not waive their right to petition for supplemental fees and costs.
IV.
In their cross-appeal, thе plaintiffs essentially challenge two aspects of the district court’s grant of supplemental attorneys’ fees and costs. First, the plaintiffs argue that although the district court correctly found that they are entitled to an attorneys’ fees award, the district court erred in applying the three percent cap from Coulter to limit the fee award because the “unusual circumstances” exception to the rule renders the three percent rule inapplicable to the supplemental fees award. They also contend that the “three percent rule” from Coulter should be reexamined because it leads to severe consequences and because a rigid misapplication of Coulter is inconsistent with the intent of Congress in passing the Fees Act, which was to provide an economic incentive for аttorneys to take on meritorious civil rights cases. Second, they argue that even if Coulter is correctly applied to some of the work that provided the basis for the third motion for fees and costs, the district court erroneously applied Coulter to all of the work underlying their third motion.
A.
“Although time spent in preparing, presenting, and trying attorney fee appli
B.
The plaintiffs argue that we should reexamine Coulter, largely because they contend that Coulters three percent rule is in tension with Weisenberger v. Huecker,
Although the supplemental fee award granted by this court in Weisenberger is likely greater than that which would have been awarded under Coulter;
Although the plaintiffs argue that it is unlikely that attorneys will continue to 'act as private attorneys general in taking on civil rights suits “if they will be compensated for only a tiny fraction of every 100 hours that they reasonably spend briefing legitimate fee requests,' defending appeals of fee awards, and negotiating lengthy and detailed consent decrees,” this argument overstates the impact of the Coulter rule. The plaintiffs are correct that any cap on attorneys’ fees might discourage attorneys from taking on civil rights cases, but the Fees Act itself presumes that the award in the main case provides sufficient incentive for attorneys. And as Coulter explains, while the availability of an award of fees for defending fee awards provides additional protection for such lawyers, this needs to be balanced against the unwanted incentives that could result from protracted litigation seeking fees for fees. Moreover, the plaintiffs err in arguing that attorneys will only receive a tiny fraction of every 100 hours they work on their attorneys’ fees cases. The Coulter rule focuses on the hours spent on the main case. Thus, in a particularly complicated and lengthy main case, an attorney may be able to recover all of the claimed hours spent on the attorneys’ fees case.
The plaintiffs argue that even if the panel declines to reexamine Coulter, the Coulter rule should not apply to their third mоtion for fees and costs because “unusual circumstances” exist which render the three percent cap inapplicable. In essence, the plaintiffs argue that the protracted and complicated nature of the litigation on the merits, as well as the significant challenges to the fee requests mounted by the defendants, demonstrate unusual circumstances distinguishable from the case in Coulter, which the district court characterized as a “simple” case.
We have previously rejected an argument that “ ‘protracted’ fee litigation [in the district court] is itself an unusual circumstance justifying a • larger recovery .... ” Auto Alliance,
Although the litigation over the fees award in this case involved a somewhat unusual procedural history and the main case was arguably more complex than the one-day bench trial involved in Coulter, the district court did not abuse its discretion in capping the supplemental fee award at three percent. The district court necessarily has a “superior understanding of the litigation.” Hensley v. Eckerhart,
C.
In their final challenge to the district court’s partial grant of their third motion for costs and fees, the plaintiffs argue that the district court abused its discretion when it applied Coulter to all of the work for which they sought to be compensated in the third motion. The district court found that all three stages of work claimed in the third motion for fees “constituted preparation for and litigation of the attorneys’ fee case” and as a result, applied the Coulter three percent rule to all of the hours claimed in the third motion. The plaintiffs argue that the time spent defending their main case fee award on appeal and the time spent negotiating the consent decree should not be considered time spent preparing and litigating the attorney fee case and that Coulter should not apply to cap their fee award for the hours claimed for those hours.
The district court did not abuse its discretion in finding that the time spent opposing and settling the appeal of the fee award for the main case was time spent preparing and litigating the attorney fee ease. The plaintiffs argue that Weisenberger and Lamar Advertising demonstrate that prevailing plaintiffs should be able to recover fees incurred defending main ease fee awards on appeal. However, Weisenberger predated Coulter’s limitation on the total possible recovery and does not support the proposition that a deviation from Coulter is appropriate when a plаintiff must defend a fee award on appeal. Further, Lamar Advertising actually notes that fees for fees are available for litigation “on the fee request at both the lower court level and at the appellate level.”
Nor did the district court abuse its discretion in finding that the hours spent negotiating the consent decree were hours spent preparing and litigating the attorneys’ fees case. While the consent decree negotiations present a somewhat unique situation, the time spent working on the decree is traceable to the litigation of the attorneys’ fees case. The parties engaged in discussions with the circuit mediator only after the defendants appealed the original fee award; accordingly, the decree negotiations — and the inclusion of the provision that the Secretary of State would pay the entire fee award for the main case in the consent decree — are the direct result of the appeal of the fee award. The negotiations which led to the inclusion of the provision regarding payment of fees previously awarded are thus traceable to litigation in pursuit of obtaining fees and the district court did not abuse its discretion in finding that the hours spent negotiating the consent decree are properly limited by the Coulter three percent rule.
V.
For the foregoing reasons, we affirm the judgment of the district court.
Notes
. "Defendants” refers to Jennifer Brunner, the then Ohio Secretary of State and the State of Ohio, as intervenor-defendant
. Although the appeal was taken, from the award of attorneys’ fees, the mediation discussions and subsequent negotiations of a consent decree included efforts to resolve substantive issues raised in the plaintiffs’ complaint and provide for injunctive relief.
. The fee “awards in the main case were as follows: (1) $321,942.15.51 [sic] to Porter Wright; (2) $99,722.58 to Carlile Patchen; and (3) $82,749.38 to the Chandra Law Firm.” Because each firm requested fees greater than the three percent cap on supplemental fee awards, the district court awarded three percent of the fee awards made in the main case to each law firm: $9,658.30 to Porter Wright, $2,991.70 to Carlile Patchen, and $2,482.50 to the Chandra Law Firm.
. The defendants argue that the affidavits from plaintiffs' counsel are not probative of intent and provide no evidence to contradict their view of the settlement negotiations precisely because they are affidavits from counsel and not from the prevailing party (NEOCH and SEIU). The defendants contend that Venegas v. Mitchell,
. It appears that the supplemental fee award granted in Weisenberger would likely exceed the three percent cap established in Coulter. The cases were decided without trial, see Milburn v. Huecker,
. The plaintiffs do not challenge the finding that the request for fees for the time spent briefing and arguing the first two motions for fees and costs was a supplemental fees request.
Concurrence Opinion
concurring.
I write separately because I question the continued vitality of the three-percent rule in cases seeking attorneys’ fees to recover the costs of pursuing fees under 42 U.S.C. § 1988. No other circuit — to my knowledge — has adopted a bright-line rule for calculating “fees for fees” like the one we stated in Coulter v. Tennessee,