11th Cir.: No en banc on attorney fees; now to SCOTUS?

The Eleventh Circuit, over the dissents of three judges, denied en banc review of a $4.5 million attorney fee enhancement in a suit to remedy systematic failures in Georgia’s foster care system.

The dissenters called for review by the Supreme Court to determine whether enhancements are permissible for extraordinary attorney performance or litigation results. Kenny A. v. Perdue, --- F.3d ----, 2008 WL 4791493 (11th Cir. Nov. 5, 2008) (No. 06-15514). Judge Wilson wrote an opinion concurring in the denial of rehearing, while Judges Tjoflat, Dubina and Barnes dissented.

            The 2002 lawsuit produced a complex settlement to remedy systemic deficiencies in the foster care systems in Georgia counties. The parties submitted the fees issue to the district court, which awarded the enhancement on plaintiffs’ counsel’s contingent representation, high litigation expenses, “superb” representation and the “intricately detailed and comprehensive” relief they achieved. The panel stated that under circuit precedent the first two of these factors were not permissible grounds for enhancement, but the last two were. 532 F.3d 1209 (11th Cir.2008) (summary here).

          Judge Carnes wrote for the dissenters; he wrote the panel opinion below, but in lengthy dicta suggested the circuit precedent on this issue be revisited. He explained that although he had never in 16 years dissented from denial of en banc review, he thought the issue here should be resolved by the Supreme Court. In Blum v. Stenson, 465 U.S. 886 (1984), the Court suggested that an enhancement might be appropriate for extraordinary performance and results, but Carnes stressed that this was dicta since the Court reversed the award in Blum. In Carnes’s view, Blum merely established that such an enhancement is inappropriate in the absence of specific supporting evidence.

            Moreover, Carnes argued that such enhancements were ruled out by Pennsylvania v. Delaware Valley Citizens, Council for Clean Air, 478 U.S. 546 (1986), which said that the standard “lodestar” calculus for fee awards “includes most, if not all, of the relevant factors” for an award, and “it is unnecessary to enhance the fee for superior performance.” Such an award would count the same good work twice. Because lower courts had not followed these “categorical statements,” and because the extensive record in this case made it an ideal vehicle, Carnes contended that the Supreme Court should take this case.

          In a separate dissent, Judge Tjoflat contended that the district court’s enhancement was based on unspecified and therefore unreviewable personal experience by the judge, and violated due process. The district court judge said that the work and success of the attorneys in the case was the finest he had seen in his career. But the judge did not specify which cases he was comparing this one to, or his standard of comparison. This was in effect, said Tjoflat, ex parte testimony on behalf of the plaintiffs, without notice to defendants.

          Tjoflat also argued that enhancements for “extraordinary results” are improper because “in the context of equitable relief, no properly-crafted injunction can be more ‘exceptional’ than or ‘superior’ to any other.” In Tjoflat’s view, “in any given equitable case, there can be but one legally proper result,” and anything more or less is improper. Accordingly, any relief that is truly “extraordinary” – e.g., a settlement that gets you something you could never get in court – is more than the law allows and should not be rewarded with a fee enhancement.

            Judge Wilson wrote to express his disagreement with the dissenters. He contended that Blum explicitly endorsed the possibilities of enhancements like the one here, and Delaware said nothing to prohibit them. Rather, the Court had simply emphasized that such enhancements would be unusual. This is the view of all the circuits to address the issue. Moreover, “[t]he discretion to enhance an attorney's fee is a tool uniquely within the province of the district judge,” and the award here was adequately justified.