Planned Parenthood Of Central And Northern Arizona v. The State Of ArizonaPlanned Parenthood Of Central And Northern Arizona v. The State Of Arizona
Anthony B. Ching, Sol. Gen., Phoenix, Ariz., for defendants-appellants.
Appeal from the United States District Court for the District of Arizona.
Before SNEED and HALL, Circuit Judges, and KELLEHER*, District Judge.
SNEED, Circuit Judge:
This is an appeal from a district court‘s grant of a summary judgment holding unconstitutiоnal, as sought to be applied against Planned Parenthood and its patients, a portion of an Arizona appropriation bill and awarding attorneys’ fees to the plaintiffs. We affirm the district court‘s judgment on the merits, modify the attorneys’ fee award, and award attorneys’ fees on appeal.
I. FACTS
Arizona participates in a Title XX federal grant program that providеs federal reimbursement for 90% of the expenditures Arizona makes for certain family planning services. Arizona allocates 10% matching funds to pay for these services. See Planned Parenthood v. Arizona, 718 F.2d 938, 941 (9th Cir.1983) (Planned Parenthood I ). This controversy has its origins in a restriction on use of the state funds for abortion-related activities. The restriction was contained in a two-paragrаph footnote to the Arizona bill appropriating the state‘s ten percent matching funds. It consists of two paragraphs and reads as follows:
No state money may be spent by the department of economic security by contract, grant or otherwise, on abortions, abortion procedures, counseling for abortion procedures or abortion referrals. These restrictions are not applicable when it is necessary to save the life of the pregnant woman.
No state money, other than money for comprehensive medical and dental care and the developmentally disabled, may be given by the department of economic security by contract, grant or otherwise to agencies or entities which offer abortions, abortion procedures, counseling for abortion procedures or abortion referrals. Governmental agencies or entities are exempt from restrictions in this paragraph.
1980 Ariz. Sess. Laws 842, 860 n *.
Planned Parenthood of Central and Northern Arizona and Planned Parenthood of Southern Arizona (collectively referred to as Planned Parenthood) brought suit to enjоin enforcement of this footnote. They argued that the footnote is an unconstitutional restriction on their freedom of speech and is void for vagueness. In 1982, the district court held that the footnote is unconstitutional on both first amendment grounds and vagueness grounds. In 1983, this circuit held that the statute is not unconstitutionally vague. Planned Parenthood I, 718 F.2d at 949. Its resolution of the first amendment issue was more complex.
The first paragraph of the Arizona statute prohibits the use of state funds for abortion-related services. Relying on Maher v. Roe, 432 U.S. 464, 97 S.Ct. 2376, 53 L.Ed.2d 484 (1977), Planned Parenthood I upheld
On remand, the district cоurt received depositions on this issue and granted summary judgment for Planned Parenthood. The State appeals. It argues, first, that the district court erred in granting summary judgment for Planned Parenthood, second, that the district court included improper costs in the fee award; and, third, that the district court erred in awarding Planned Parenthood an upward adjustment of the attorneys’ fee award above the “lodestar” amount. Planned Parenthood also seeks attorneys’ fees for the cost of defending against the State‘s appeal.
II. MOOTNESS
The State in its first argument appears to frame a strange and simplistic proposition. It proceeds as follows. Planned Parenthood of Northern and Central Arizona spent funds on “counseling for abortion procedures or аbortion referrals” that had their source, in part, in State funds. This expenditure demonstrates that “withdrawing all state funds from Planned Parenthood ... [is] the only way to ensure that Planned Parenthood would not use state funds to support its abortion-related activities.” Id. at 946. This, in turn, removed any cloud of possible unconstitutionality from paragraph two of the Arizona footnote and rendered any dispute on this issue moot.
The flaw in the argument is that Planned Parenthood‘s expenditure by no means demonstrates that withdrawal of funds is necessary to prevent violation of the footnote‘s first paragraph. The argument of the State renders this court‘s remand in Planned Parenthood I an exercise in futility. Had we assumed, as the State does in its argument, that any expenditure on abortion-related activities necеssarily is derived from state funds at least to the extent of ten cents on the dollar, the remand would have been pointless. The constitutionality of the second paragraph on the basis of this assumption should have been confronted in Planned Parenthood I. Not having done so, we obviously rejected the State‘s assumption. We proceeded on the basis that it was the burden of the State to show thаt ear-marking of state funds for non-abortion-related activities and a system of tracing reasonably susceptible to auditing by state officials was not possible to create.
Thus, the question before us is whether the State has made such a showing. It is not moot. See 13A C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 3533, at 212 (1984).
III. CONSTITUTIONALITY OF THE STATUTE
We review the district court‘s grant of summary judgment de novo. See, e.g., Lojek v. Thomas, 716 F.2d 675, 677 (9th Cir.1983).
Turning to the merits, we note that neither of the parties have attempted to persuade us to reconsider the Planned Parenthood I decision. Moreover, it is clear that on remand the showing made by the State does not establish the impossibility of monitoring funds. Affidavits by State officials charged with distributing the funds, which are not controverted, established that monitoring was feasible. See Excerрt of Record (E.R.) at 40-41 (deposition of Guy Mikkelsen); id. at 43 (deposition of Betty DeGraw).
Planned Parenthood also produced substantial evidence before the district court on the issue of feasibility of monitoring. Finally, in its brief to this court, the State has conceded that the spending practices of the Southern Arizona branch of Planned Parenthood adequately segregate state funds from abortion-related services. Appellant‘s Opening Brief at 9 n. 3.
The State contends that the spending practices of Planned Parenthood of Northern and Central Arizona demonstrate the impossibility of monitoring. This is simply not so. The State to monitor effectively need not be present at every client and patient interview. The fact is that the State has not attemрted to monitor expenditures by Planned Parenthood. The most that can be said is that misuse of funds is possible so long as the State fails to monitor spending. This is a far cry from evidence that monitoring is not possible.
In short, Planned Parenthood has submitted convincing evidence on the feasibility of monitoring the funds. The State has not controverted that evidence and even admits that Planned Parеnthood of Southern Arizona has successfully segregated state funds from its abortion-related expenditures. We hold, after a de novo review, that the district court‘s grant of summary judgment on the constitutionality of paragraph two of the Arizona footnote as applied against Planned Parenthood and its patients was proper.
IV. ATTORNEYS’ FEES IN THE DISTRICT COURT
Because Planned Parenthood prevailed in the litigation, the district court awarded it attorneys’ fees under the Civil Rights Attorney Fee Award Act of 1976,
At the outset we note that determination of attorneys’ fees “is within the sound discretion of the trial court and will not be disturbed absent an abuse of discretion.” Rutherford v. Pitchess, 713 F.2d 1416, 1420 (9th Cir.1983); see Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983) (emphasizing “the district court‘s superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters“). We also acknowledge that looking over the shoulders of attorneys to examine their charges is not a task welcomed by judges. Fee shifting makes our scrutiny necessary, however. Evеn though our competence to undertake this scrutiny is limited at best, we must assume the burden because at present no other bearer is available. Somebody must decide what fees should appropriately be shifted to the loser. No doubt our “incompetence” in this area is no greater than it is in many others in which we are compelled to render decisions; and it is, I suspеct, our limited ability to avoid decisionmaking, in comparison to that enjoyed by the other two great branches of government, that induces many litigants to crowd our portals.
So, in full awareness of our limitations, we address the issue of attorneys’ fees.
A. The “Excessive” Costs Issue
The State relies on Hensley v. Eckerhart for its argument that the district court‘s award forces the State to reimburse Planned Parenthood for improper expenses. Hensley discussed the adjustments district courts should make in
Counsel for the prevailing party should make a good-faith effort to exclude from a fee request hours that are excessive, rеdundant, or otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such hours from his fee submission. “In the private sector, ‘billing judgment’ is an important component in fee setting. It is no less important here. Hours that are not properly billed to one‘s client also are not properly billed to one‘s adversary pursuant to statutory authority.”
461 U.S. at 434, 103 S.Ct. at 1939 (quoting Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) (en banc)) (emphasis by Copeland court).
Hours expended in pursuit of unsuccessful claims in civil rights cases were treated as follows:
Many civil rights cases will present only a single claim. In other cases the plaintiff‘s claims for relief will involve a common core of facts or will be based on related legal theories. Much of counsel‘s time will be devoted generally to the litigation as a whole, making it difficult to divide the hоurs expended on a claim-by-claim basis. Such a lawsuit cannot be viewed as a series of discrete claims. Instead the district court should focus on the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.
Where a plaintiff has obtained excellent results, his attorney should recover a fully comрensatory fee. Normally this will encompass all hours reasonably expended on the litigation....
Id. 461 U.S. at 435, 103 S.Ct. at 1940.
Neither hours not properly billed to one‘s client nor hours expended on discrete and unsuccessful claims exist in this case. The State lists four categories of attorney effort to which it objects:
time spent for the unsuccessful attempt to name the State of Arizona as а defendant; their attempt at garnishment to collect the previously awarded attorneys’ fees judgment; the time spent on whether the preliminary injunction appeal was moot pursuant to this Court‘s request; and the time spent on the void-for-vagueness issue which this Court has decided in the defendant‘s favor.
Appellant‘s Opening Brief at 12. We think that a reasonable client who had reсeived the results obtained in this litigation would not cavil at being billed for these ancillary efforts. We also think that it is improper in this case to categorize any of these efforts as discrete claims. The thrust of this lawsuit was Planned Parenthood‘s effort to continue receiving state funds. All of these activities are aimed at that result. We hold that all of the challenged activities are properly compensable by an attorneys’ fee award under
B. Use of a Multiplier Issue
We approach the use of a multiplier somewhat differently, however. In Planned Parenthood I, the panel concluded that “there is nothing to suggest that the court abused its discretion in any way in determining the appropriate ‘multiplier’ or adjustment factor.” 718 F.2d at 951. First, because the panel vacated the fee award when it remanded the case for further factfinding on the first amendment claim, we are not bound by the Planned Parenthood I panel‘s consideration of the attorneys’ fee issue. It is clear that the court‘s evaluation of the use of the multiplier was dicta. See 718 F.2d at 951.1 Moreover, because the Supreme Court has recently decided a case on this question, Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), we are less inclined than we might ordinarily bе to adopt the conclusions of the prior panel without independent consideration. See Kimball v. Callahan, 590 F.2d 768, 771-75 (9th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979); White v. Murtha, 377 F.2d 428, 431-32 (5th Cir.1967); 18 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure Sec. 4478, at 790-91 (1981).
Planned Parenthood suggests two justifications for imposition of a multiplier in this case: the plaintiff‘s success in the lawsuit and the contingency of recovery. Our examination of Blum v. Stenson convinces us that neither of thеse factors justifies the use of a multiplier in this case.
In Blum v. Stenson, the Court discussed the manner in which a plaintiff could justify a
Planned Parenthood attempts to justify use of the multiplier by pointing to the success of their efforts. This is inadequate justification. As the Supreme Court pointed out in Blum v. Stenson, see id. at 900, 104 S.Ct. at 1549, adequate compensation for the success of a civil rights plaintiff will normally be secured by an award based on the number of hours billed and the billing rate of the attorneys. Many clients with reasonable bargaining power would insist upon paying no more. We do not think the State of Arizona should be required to shoulder a greater burden.
The Supreme Court also addressed the factors of risk and contingency of recovery as bases fоr upward fee adjustments. The Court seemed to approve an adjustment based on “risks associated with the litigation or claim that the risk of nonpayment required an upward adjustment to provide a reasonable fee.” Id. at 901, 104 S.Ct. at 1550; accord LaDuke v. Nelson, 762 F.2d 1318, 1332-33 (9th Cir.1985) (EAJA case); Hall v. Borough of Roselle, 747 F.2d 838, 843 (3d Cir.1984) (
Planned Parenthood‘s argument is slightly different. It argues that the controversial nature of the abortion issue makes “risky” the representation of clients like Planned Parenthood. It argues that controversial representation may have an adverse effеct on the law firm‘s other business by soiling its reputation. We recognize that the “undesirable” nature of a case is an appropriate factor in determining attorneys’ fees. See, e.g., Kerr v. Screen Extras Guild, 526 F.2d 67, 69-70 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976); Johnson v. Georgia Highway Express, Inc., 488 F.2d 714, 719 (5th Cir.1974), cited with approval in S.Rep. No. 1011, 94th Cong., 2d Sess. 6 (legislative history of
Nevertheless, we reject this contention as a justification for the imposition of a multiplier in this case. Controversial representation is just as likely to bolster the reputation of a law firm as it is to harm it. Planned Parenthood may have its enemies; but it also has many friends. It is hardly a pariah. Moreover, there is no evidence in the record that the representation actually posed a substantial risk to the law firm‘s business or that any risk presented was not аdequately taken into consideration in setting the hourly rate. The Supreme Court‘s opinion in Blum predisposes us against the use of a multiplier unless the successful plaintiff has demonstrated that a lodestar amount does not represent a fully compensatory fee. The plaintiffs in this case have made no such showing, but rely instead on abstract arguments in their brief. Accordingly, we revеrse the district court‘s judgment to the extent that it applied a multiplier in calculating the fee award.
V. ATTORNEYS’ FEES ON APPEAL
Planned Parenthood seeks attorneys’ fees on appeal under
AFFIRMED IN PART, REVERSED IN PART.