Serv. Employees Int'l Union v. Jon Husted ( 2016 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 16a0179p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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THE NORTHEAST OHIO COALITION FOR THE ┐
HOMELESS; SERVICE EMPLOYEES INTERNATIONAL │
UNION, LOCAL 1199; COLUMBUS COALITION FOR │
THE HOMELESS; │
> Nos. 14-4083/ 4084/ 4132/
Plaintiffs-Appellees/Cross-Appellants, │ 4133/ 15-3295/ 3296/ 3380/
│ 3381
OHIO DEMOCRATIC PARTY,
│
Intervenor-Appellee/Cross-Appellant, │
│
v. │
│
JON HUSTED, in his official capacity as Secretary of │
the State of Ohio, │
Defendant-Appellant/Cross-Appellee, │
STATE OF OHIO, │
│
Intervenor-Appellant/Cross-Appellee. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:06-cv-00896—Algenon L. Marbley, District Judge.
Argued: April 28, 2016
Decided and Filed: August 1, 2016
Before: MERRITT, SUHRHEINRICH, DONALD, Circuit Judges.
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COUNSEL
ARGUED: Zachery P. Keller, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellants/Cross-Appellees. Sandhya Gupta, THE CHANDRA LAW FIRM, LLC,
Cleveland, Ohio, for Appellees/Cross-Appellants Northeast Ohio Coalition for the Homeless and
Ohio Democratic Party. Stephen P. Berzon, ALTSHULER BERZON LLP, San Francisco,
California, for Appellees/Cross-Appellants Service Employees. ON BRIEF: Zachery P. Keller,
Ryan L. Richardson, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellants/Cross-Appellees. Sandhya Gupta, Subodh Chandra, THE CHANDRA LAW FIRM,
LLC, Cleveland, Ohio, Caroline H. Gentry, PORTER, WRIGHT, MORRIS & ARTHUR LLP,
1
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Dayton, Ohio, Donald J. McTigue, Mark A. McGinnis, J. Corey Colombo, MCTIGUE
MCGINNIS & COLOMBO, LLC, Columbus, Ohio, for Appellees/Cross-Appellants Northeast
Ohio Coalition for the Homeless and Ohio Democratic Party. Stephen P. Berzon, ALTSHULER
BERZON LLP, San Francisco, California, for Appellees/Cross-Appellants Service Employees.
Frederick M. Gittes, Jeffrey P. Vardaro, THE GITTES LAW GROUP, Columbus, Ohio, Barbara
D. Bonar, LAW OFFICES OF B. DAHLENBURG BONAR, Covington, Kentucky, Jon M.
Greenbaum, LAWYERS’ COMMITTEE FOR CIVIL RIGHTS UNDER LAW, Washington,
D.C., Freda J. Levenson, ACLU OF OHIO FOUNDATION, INC., Cleveland, Ohio, Kathleen L.
Bogas, BOGAS & KONCIUS, P.C., Bingham Farms, Michigan, Jennifer B. Morton, JENNIFER
MORTON LAW, PLLC, Knoxville, Tennessee, Jacqueline Greene, FRIEDMAN & GILBERT,
Cleveland, Ohio, for Amicus Curiae.
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OPINION
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SUHRHEINRICH, Circuit Judge.
I. OVERVIEW
Months before the 2012 presidential election, based on a change in state law, Defendants
State of Ohio and Secretary of State John Husted (collectively, “Defendants”) sought to undo a
federal consent decree (“Decree”) that required Ohio to count provisional ballots cast by voters
who appeared in the correct polling location but lacked certain identification and further required
Ohio to count ballots cast in the right polling place but wrong precinct due to poll-worker error.
In two related cases, NEOCH v. Husted (NEOCH) and SEIU Local 1 v. Husted (SEIU Local 1),1
Plaintiffs (NEOCH Plaintiffs; SEIU Local 1 Plaintiffs; collectively, “Plaintiffs”) successfully
defended the Decree and obtained an extension of it for one presidential cycle (NEOCH) and
further obtained statewide preliminary and permanent injunctive relief requiring Ohio to count
these votes (SEIU Local I).
This appeal involves three attorneys’ fee motions under 42 U.S.C. § 1988 in the two
related cases. Specifically, Plaintiffs seek attorneys’ fees and costs stemming from (1) their
work in 2012 defending the Decree, (2) their work in 2013 obtaining an extension of the Decree,
1
NEOCH v. Husted, Case No. 2:06-cv-896; SEIU Local 1 v. Husted, Case No. 2:12-cv-00562.
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and (3) for the SEIU Plaintiffs, the work performed to obtain a preliminary injunction in 2012
and a permanent injunction in 2013. Using the lodestar method, the district court awarded fees
to Plaintiffs in both cases. The district court, however, limited the fees to recover the costs of
pursuing fees to 3% of the main case pursuant to the Coulter rule. See Coulter v. Tennessee,
805 F.2d 146, 151 (6th Cir. 1986) (setting a cap on fees for fees).
On appeal Defendants argue that the district court abused its discretion because its
award—$2 million in fees to twenty-five attorneys for over 6,000 hours in the two cases—was
not “reasonable” within the meaning of § 1988. Plaintiffs cross appeal the district court’s
application of the Coulter rule, claiming that “unusual circumstances” warrants a higher
percentage. Plaintiffs, joined by Amici,2 challenge the continued vitality of Coulter in light of
Commissioner, I.N.S. v. Jean, 496 U.S. 154 (1990).
For the reasons that follow, we AFFIRM the hours and rates awarded by the district court
with the exception of the rates awarded to a contingent of attorneys from California. We also
abrogate the Coulter 3% cap on fees for fees because the rule is inconsistent with intervening
Supreme Court authority.
II. BACKGROUND
As the district court and this court recognized, “the consent decree arose from the
‘turbulent saga of Ohio’s provisional voting regime’ that began in 2006 when Ohio enacted
comprehensive election reforms.” Ne. Ohio Coal. for the Homeless v. Husted, 696 F.3d 580, 584
(6th Cir. 2012) [hereinafter NEOCH] (per curiam) (quoting No. 2:12-CV-562, R. 67, Plenary Op
& Order at 2). A detailed history of the Decree can be found in our opinion in Hunter v.
Hamilton County Board of Elections, 635 F.3d 219, 223-24 (6th Cir. 2011). This court has also
recounted many of the events that underlie the fee award at issue. See NEOCH, 696 F.3d 580(affirming the district court’s denial of motion to vacate Decree; affirming most of its grant of a
2
Brief of Amici Curiae includes the Kentucky Employment Lawyers Association, the Michigan
Employment Lawyers Association, the Ohio Employment Lawyers Association, the Tennessee Employment
Lawyers Association, the Lawyers’ Committee for Civil Rights Under Law, the ACLU of Ohio, and the Ohio
Chapter of the National Lawyers Guild.
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preliminary injunction). Because it is essential to determining whether the district court abused
its discretion in making its three fee awards, we must give a rather detailed account of the
motions and proceedings upon which the awards were based.
A. NEOCH Lawsuit and 2010 Consent Decree
In 2006, the Ohio General Assembly amended Ohio’s Election Code to require that
voters provide one of several types of identification in order to cast a regular ballot in state and
federal elections in Ohio. That same year, the Northeast Ohio Coalition for the Homeless
(NEOCH) and the Service Employees International Union Local 1199 brought an action under
42 U.S.C. § 1983 against the Ohio Secretary of State challenging the constitutionality of several
provisions of the newly-enacted voter identification and provisional ballot laws. The State of
Ohio intervened on behalf of the people of Ohio and the General Assembly (collectively,
“Defendants”). See NEOCH v. Blackwell, 467 F.3d 999, 1002-04 (6th Cir. 2006).
On April 19, 2010, the district court entered a consent decree (“Decree”) between the
parties. Although it stopped short of finding constitutional violations, the Decree mandated that
the Board of Elections not reject provisional ballots cast by voters using only the last four digits
of the voter’s social security number as identification that, due to poll-worker error, were cast
(1) in the correct polling place but wrong precinct, or (2) with nonconforming or incomplete
ballot affirmations (SSN-4 voters). The Decree was “final and binding,” but any of the parties
could file a motion to modify, extend, or terminate the Decree for good cause shown. The
Decree was valid through June 30, 2013. See NEOCH, 696 F.3d at 584, 601-02.
Ohio followed the Decree in the 2010 and 2011 general elections and the 2012 primary.
B. 2012 Proceedings Relating to the NEOCH 2010 Consent Decree
1. NEOCH Motion to Enjoin State Court Proceedings
In 2011, the Ohio Supreme Court ruled that provisional ballots cast in the wrong precinct
must be summarily disqualified if due to poll-worker error even if the voter was not at fault.
Ohio ex rel. Painter v. Brunner, 941 N.E.2d 782, 794 (Ohio 2011) (per curiam). On April 16,
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2012, the Ohio Senate President and House of Representatives Speaker Pro Tempore (jointly,
“Relators”) filed a writ of mandamus in the Ohio Supreme Court seeking a declaration that the
Decree was inconsistent with Ohio law. In response, on May 8, 2012, the NEOCH Plaintiffs
moved in the district court for an injunction under the All Writs Act to prohibit the Relators from
collaterally attacking the Decree and, in the alternative, an order to show cause why the Relators
should not be held in contempt. The Relators did not oppose the motion, and Defendants took no
position.
On May 9, 2012, the district court held a telephone status conference with counsel for
Plaintiffs, the Relators, the State of Ohio, and the Secretary of State. The court ordered an
expedited response brief from the Relators. On May 10, 2012, the district court held an
additional status conference with the same parties and announced its ruling. On May 11, 2012,
the district court issued a 17-page opinion granting Plaintiffs’ motion to enjoin the state court
proceedings and ordering the Relators to dismiss their suit in state court. (May 11, 2012 Op.).
First, the district court concluded that it had jurisdiction over the nonparty Relators, who were
acting on behalf of the State of Ohio, a named party to the Decree, and that it had the power
under the All Writs Act, 28 U.S.C. § 1651, to enforce its judgment against nonparty interference
in any event. The court also rejected the Relators’ argument that the Anti-Injunction Act,
28 U.S.C. § 2283, prohibited the court from enjoining their mandamus action. The district court
held that the requested relief was warranted given the Relators’ “extraordinary act of lodging a
direct collateral attack on a Consent Decree of this Court.” The Relators subsequently dismissed
their suit in the Ohio Supreme Court.
2. Defendants’ Request to Vacate Decree
Defendants asked the district court to invalidate the Decree, claiming it conflicted with
state law. Defendants also argued that the Decree was void ab initio because the Secretary of
State lacked the unilateral authority to abrogate state law absent a constitutional violation. On
May 17, 2012, the district court ordered expedited briefing on the threshold issue of the legal
validity of the Decree. The court held a merits hearing on June 27, 2012. On July 9, 2012, the
district court issued a decision rejecting Defendants’ request to vacate the Decree. (July 9, 2012
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Op.). Specifically, the court (1) rejected Defendants’ argument that the Decree irreconcilably
conflicted with state law; (2) held that Rule 60(b) governed Defendants’ motion to vacate the
decree; and (3) ruled that Defendants had not shown grounds for relief under Rule 60(b)(4) and
(b)(5) because they had failed to show that the Decree was no longer necessary to prevent
constitutional violations.
3. NEOCH Motion to Modify the Decree
On June 20, 2012, while Defendants’ request to vacate the Decree was still pending, the
NEOCH Plaintiffs filed a motion to modify the Decree to prevent further constitutional
violations, including alleged equal protection problems caused by counties’ application of
disparate standards in implementing the Decree. The NEOCH Plaintiffs asked the court to
expand the Decree to protect all Ohio voters who cast “correct location, wrong precinct” ballots,
not just SSN-4 voters.
C. SEIU Local 1 Motion for Preliminary Injunction
On June 22, 2012, a separate group of Plaintiffs, the Service Employees International
Union (SEIU Local 1 Plaintiffs), represented by some overlapping counsel, filed a separate
action alleging that Ohio’s strict application of the disqualification rules to ballot deficiencies
caused by poll-worker error violated the Fourteenth Amendment’s Equal Protection and Due
Process Clauses. The SEIU Local 1 Plaintiffs also alleged that the Decree’s preferential
treatment of SSN-4 wrong-precinct ballots violated equal protection. Finally, the SEIU Local 1
Plaintiffs sought relief for voters who failed to properly sign ballot affirmations (deficient-
affirmation ballots). The SEIU Local 1 Plaintiffs sought a preliminary injunction, arguing that
the Ohio election laws burdened the fundamental right to vote and did not serve sufficient state
interests. The SEIU Local 1 Plaintiffs proposed “remaking” wrong-precinct provisional ballots
to cast only “upballot” votes, or votes in eligible races.
Because the two cases were similar and sought parallel relief, the district court deemed
them related, and on June 27, 2012, heard joint arguments on the NEOCH Plaintiffs’ motion to
modify and the SEIU Local 1 Plaintiffs’ motion for a preliminary injunction.
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D. District Court Rulings on SEIU Local 1 Preliminary Injunction Motion and
NEOCH Motion to Modify
On August 27, 2012, the district court issued a preliminary injunction in SEIU Local 1 v.
Husted, ordering Defendants to count all wrong-precinct provisional ballots unless there was
affirmative evidence that the poll worker properly performed his or her duties, and to count all
provisional ballots with technical errors in the ballot envelope. (Aug. 27, 2012 Op. or “Plenary
Op. & Order”). The district court’s 58-page Plenary Opinion and Order premised injunctive
relief upon three likely equal protection violations and a likely due process violation. NEOCH,
696 F.3d at 585.
First, the district court addressed the equal protection claim based on wrong-precinct
ballots caused by poll-worker error. This court described the proceedings in the district court:
Beginning with the SEIU plaintiffs’ wrong-precinct ballots claim, the
court found reliable evidence that Ohio’s county election boards disqualified
thousands of wrong-precinct ballots in each of Ohio’s three most recent elections.
Specifically, the court found that Ohio rejected more than 14,000 wrong-precinct
ballots in 2008 and 11,000 more in 2010, with wrong-precinct rejections
occurring in the vast majority of Ohio counties. (Plenary Op. & Order at 26 &
n.28, 27 (counting 14,335 wrong-precinct rejections in 2008 and 11,775 in 2010).)
And in the mid-cycle election of 2011, which involved no federal races, Ohio kept
specific data regarding right-place/wrong-precinct ballots revealing that Ohio
disqualified more than 1,800 such ballots. But for the consent decree entered in
the NEOCH litigation, Ohio would have disqualified another 1,500 such ballots.
(Id. at 25–26 (finding that Ohio disqualified 1,826 of 3,380 right-place/wrong-
precinct ballots in 2011).) This data led the court to conclude that “[w]hile the
number and frequency of wrong-precinct ballot disqualifications vary county to
county, the problem as a whole is systemic and statewide.” (Id. at 26.) The court
noted that “[m]uch of the factual basis upon which the Court relies for its findings
is uncontested, or has already been established by this Court or the courts in [the
Hunter litigation].” (Id. at 25.)
Though the Secretary did not dispute the accuracy of these statistics, it
challenged their relevance in light of recent efforts to improve Ohio’s provisional
ballot system. The Secretary also argued that reasons other than poll-worker error
may have caused some of the wrong-precinct ballots. The district court rejected
these arguments, citing the failure of previous state directives and the absence of
evidence that voters disobeyed poll-worker instructions regarding voting
precincts. “No party,” it stated, “has identified a single example, from the past
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four years’ elections, of a wrong-precinct provisional ballot being cast because the
voter refused to vote in the correct precinct.” (Id. at 29.) Invoking poll workers’
statutory mandate to direct voters to the correct precinct and inform them that
wrong-precinct votes will not count, see O.R.C. § 3505.181(C)(1), the district
court reasoned, “It is common sense that no rational voter who arrives at the
correct polling place would ever refuse to cast a provisional ballot in the correct
precinct. . . .” (Plenary Op. & Order at 29.) “Based on the record evidence
provided thus far,” the court concluded that “Plaintiffs ha[d] established a strong
likelihood that thousands of lawfully-registered voters will be completely
deprived of their right to vote under Ohio Rev. Code § 3505.183(B)(4)(a)(ii) in
the upcoming election because of poll-worker error.” (Id. at 30.)
NEOCH, 696 F.3d at 586.
The district court then weighed this burden against the state interests justifying the
automatic disqualification of wrong-precinct provisional ballots under the balancing test
established by Anderson v. Celebrezze, 460 U.S. 780, 789 (1983), and Burdick v. Takushi,
504 U.S. 428, 434 (1992). Defendants relied on the “significant and numerous” advantages of
the precinct voting system articulated in Sandusky County Democratic Party v. Blackwell,
387 F.3d 565, 569 (6th Cir. 2004) (per curiam): (1) capping the number of voters at a polling
place, (2) limiting the precinct ballot to applicable elections, (3) making the precinct ballot less
confusing, (4) simplifying election administration, and (5) allowing the state to place polling
locations closer to voter residences. NEOCH, 696 F.3d at 586-87. The district court found these
factors inapposite to the facts at hand or unsupported by the record evidence. The district court
also determined that Ohio’s disqualification of right-place/wrong-precinct provisional ballots
constituted invidious discrimination because “the restriction bore no relation to those voters’
qualifications.” Id. at 587.
Second, the district court considered the equal protection argument based on deficient-
affirmation ballots caused by poll-worker error. The court attributed these deficiencies,
including missing or misplaced printed names or signatures, to poll-worker error “because it is
the poll worker’s duty to ensure that provisional ballots are cast with a validly completed ballot
envelope and affirmation.” Id. (citing Plenary Op. & Order at 43 (citing O.R.C.
§§ 3505.181(B)(2)-(3), 3505.182)). The court found the State’s proposed interests in rejecting
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ballots with these affirmation deficiencies—the same Sandusky interests discussed above—
insufficient to support the burden on these voters. Id. at 587-88.
Third, the district court evaluated the equal protection argument based on the Decree’s
preferential treatment of SSN-4 ballots. We noted that
the district court agreed with the SEIU plaintiffs that Ohio’s differential treatment
of wrong-precinct ballots, depending on the form of identification used to cast the
ballot, violated equal protection. Recognizing that the NEOCH consent decree
provided a different vote-counting standard for SSN–4 provisional ballots
(allowing a chance to prove poll-worker error and have the vote counted) and all
other provisional ballots (not), the court inquired whether state interests justified
the preferential treatment. The State—by now seeking to vacate the consent
decree—offered none, and the court agreed, finding “[t]here is no reason for
treating provisional ballots differently based on the type of identification used.”
(Id. at 49.)
Id. at 588.
Fourth, the district court addressed the due process argument based on wrong-precinct
ballots caused by poll-worker error. We observed that “the [district] court adopted dicta from
the post-remand judgment in the Hunter litigation that Ohio’s strict disqualification of deficient
ballots, regardless of poll-worker error, rendered the election system ‘fundamentally unfair,’ in
violation of due process.” Id. (citing Hunter v. Hamilton Cty. Bd. of Elections, 850 F. Supp. 2d
795, 847 (S.D. Ohio 2012)). Thus, “[r]elying on the same evidence discussed in the equal
protection claims,” the district court found a strong likelihood of success in the SEIU Local
Plaintiffs’ due process claim. Id.The district court therefore concluded that the equitable factors warranted the grant of a
preliminary injunction requiring the Secretary to count correct-location/wrong-precinct and
deficient-affirmation provisional ballots unless the State could prove that the poll worker advised
the voter to cast the ballot in the correct precinct and the voter refused. Id.Because the preliminary injunction in SEIU Local 1 v. Husted granted the same equitable
relief requested by the NEOCH Plaintiffs’ motion to modify, the district court stayed the
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NEOCH Plaintiffs’ motion to modify the decree as moot, subject to renewal if warranted for
good cause.
E. This Court’s Expedited Appeals from Denial of Motion to Vacate theNEOCH
Decree and the SEIU Local 1 Preliminary Injunction
Defendants appealed the denial of the motion to vacate the NEOCH Decree and the SEIU
Local 1 preliminary injunction. This court expedited briefing in both appeals—which were not
consolidated—and ordered an expedited telephonic oral argument to be held on October 1, 2012.
On October 11, 2012, another panel of this court affirmed the district court’s denial of
Defendants’ request to vacate the NEOCH Decree and the grant of the SEIU Local 1 preliminary
injunction requiring Defendants to count provisional ballots cast in the correct-location/wrong-
precinct due to poll worker error. See id.at 584. This court reversed the SEIU Local 1 ballot
affirmation injunction. See id.
1. SEIU Local 1 Preliminary Injunction
In SEIU Local 1, this court affirmed the wrong-precinct provision of the preliminary
injunction, holding that automatic disqualification of wrong-precinct/right-location most likely
violated equal protection and substantive due process. Id. at 591-99. We “agree[d] on all
counts” with the district court’s identification of “three strands of likely constitutional violations
related to the wrong-precinct ballots”: “the unreasonableness and fundamental unfairness of
disqualifying wrong-precinct ballots caused by poll-worker error (equal protection and due
process), and the disparate treatment of deficient provisional ballots under the consent decree
(equal protection).” Id. at 591.
First, we agreed that the Anderson-Burdick standard applied because the SEIU Local 1
Plaintiffs had demonstrated that their right to vote was burdened by Ohio’s automatic
disqualification rule for all wrong-precinct voters in violation of equal protection. We explained:
Here, the district court identified a substantial burden on provisional
voters. The court’s factual findings detail Ohio’s “systemic” disqualification of
thousands of wrong-precinct provisional ballots and a strong likelihood that the
majority of these miscast votes result from poll-worker error. . . .
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Though the district court did not make specific factual findings regarding
the incidence of poll-worker error, it found such error evident in poll workers’
statutory duty to direct voters to the correct polling place. See O.R.C.
§ 3505.181(C)(1). . . . The court also cited the proliferation of multi-precinct
polling locations in Ohio’s counties as increasing the likelihood of poll-worker
error causing right-place/wrong-precinct ballots. (See Plenary Op. & Order at 6
n.10 (finding, as of the 2012 primaries, shared-polling place rates for the
following counties’ election precincts: Butler, 95%; Cuyahoga, 94%; Greene,
100%; Franklin County, 68%; Lorain, 90%; Montgomery, 88%; Stark County,
71%).)
In addition to these findings, the SEIU plaintiffs presented voluminous
evidence that poll workers give voters wrong-precinct ballots for a number of
reasons, ranging from misunderstanding counties’ precinct location guides to
failing to understand the vote-disqualifying ramifications of handing out wrong-
precinct ballots.
Id. at 593-94.
By contrast, Defendants failed to present evidence to the district court or this court
demonstrating that other factors besides poll-worker error caused wrong-precinct ballots. Id.at
594. “Given this record and the clear legal duty imposed on poll workers by Ohio law,” we
found “no clear error with the district court’s factual conclusion that most right-place/wrong-
precinct ballots result, and will continue to result, from poll-worker error.” Id. at 594-95. We
also held that although the Sandusky factors reflected the state’s legitimate interests in
maintaining a precinct-based system, the State failed to show how these interests supported the
restriction at issue. Id. at 595-97.
Next, we held that the voter burden identified by the SEIU Local 1 Plaintiffs also
supported the district court’s finding of a probable due process violation. Id. at 597. We
observed that “[t]he SEIU plaintiffs have shown, and the State does not deny, that poll-worker
error causes thousands of qualified voters to cast wrong-precinct ballots from the correct polling
locations.” Id. Accepting Defendants’ argument that a due process violation requires intentional
conduct, we nonetheless found
sufficient indicia of purposeful conduct in the State’s intent to enforce its strict
disqualification rules without exception, despite the systemic poll-worker error
identified in this litigation and others. Hunter shed light on this problem last year,
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but the State persisted in its position. In light of the well-documented problem of
wrong-precinct provisional ballots caused by poll-worker error, resulting in the
rejection of thousands of provisional ballots each year, we have no basis on which
to disagree with the district court’s finding of a likely due process violation.
Id. at 597-98.
Third, we agreed with the parties and the district court that, by providing a remedy only
for SSN-4 voters, the Decree “likely violate[d] the equal protection principle recognized in Bush
v. Gore, [531 U.S. 98 (2000)].” Id. at 598. We held that the SEIU Local 1 Plaintiffs’ equal
protection claim “squarely raises the statewide disparity inherent in the terms of the consent
decree: its preferential treatment of SSN–4 provisional ballots.” Id. Thus, consistent with
Hunter, we affirmed the district court’s finding that the Decree’s different treatment of similarly
situated provisional ballots likely violated equal protection. Id. We further held that the
injunctive relief was narrowly tailored to the harm identified: denial of the fundamental right to
vote based on the automatic disqualification of right-place/wrong-precinct votes based on poll-
worker error. Id. at 599.
On the other hand, this court rejected the district court’s finding of a likely equal
protection violation based solely on the unreasonableness of disqualifying deficient-affirmation
ballots caused by poll-worker error, “[b]ecause the spotty record and Ohio law” did not support
the district court’s presumption of poll-worker error. Id. Furthermore, the ballot affirmation
deficiencies stemmed from “voters’ failure to follow the form’s rather simple instructions.” Id.
Thus, because the SEIU Local 1 Plaintiffs had not shown a likelihood of success on the merits of
the deficient-affirmation claim, we reversed the preliminary injunction remedy on this point. Id.
at 600.
2. NEOCH Decree
In NEOCH, this court held that Rule 60(b) applied to Defendants’ request to vacate the
Decree and that Defendants had not met their burden under that rule. Id. at 600-03. Defendants
argued that Rule 60(b) did not apply because the Decree violated Ohio law and was therefore
void under Rule 60(b). We rejected this argument because Defendants did not allege or show a
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“jurisdictional error” or “a violation of due process” that would justify relief under Rule
60(b)(4). Id. at 601. We also rejected Defendants’ argument that the provision allowing the
parties to modify the agreement “for good cause shown” waived the strictures of Rule 60(b). We
noted that, although a consent decree is somewhat contractual in nature, it is still subject to Rule
60(b) because it is nonetheless a judicial decree. Id. The term “good cause shown” did not
change that fact. Id. at 601-02. This court also rejected Defendants’ position that the Decree
was not a final judgment given the Decree’s explicit statement that is “final and binding” as to
the “matters resolved in this Decree.” Id. at 602.
Having decided Rule 60(b) applied, we held that Defendants did not meet the
requirements of Rule 60(b)(5) because they failed to demonstrate a significant change in
circumstances making the Decree unworkable or detrimental to the public interest. Id. at 603.
Finally we noted that, because the court had set aside the portion of the preliminary injunction
addressing deficient-affirmation provisional ballots, and the Decree continued to mandate that
some deficient-affirmation provisional ballots be counted, a potential equal protection problem
existed under Bush v. Gore. Id. at 603-04. Furthermore, the Decree “standing on its own” also
raised Bush v. Gore issues in treating some provisional ballots differently than others. Id. at 604.
This concern was “not purely academic,” because the Decree was “the only agreement governing
these issues for Ohio’s 2013 primary elections.” Id. We therefore remanded for the district court
to consider in the first instance whether the Decree should be modified to address the
discrepancy created by the Decree between different sets of provisional ballots. Id.
3. Remand
On remand, Plaintiffs obtained a separate preliminary injunction requiring Ohio to count
wrong-location/wrong-precinct provisional ballots that resulted from poll-worker error, but this
court issued an emergency stay pending appeal of the order. Serv. Emps. Int’l Union Local 1 v.
Husted, 698 F.3d 341, 343 (6th Cir. 2012) [hereinafter SEIU Local 1] (per curiam). The appeal
was later dismissed as moot after the 2012 election. SEIU Local 1 v. Husted, 531 F. App’x 755,
755 (6th Cir. 2013). The district court also granted Defendants’ motion to vacate the Decree’s
affirmation provision. Plaintiffs did not appeal that decision.
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F. 2013 Proceedings
On June 10, 2013, some of the NEOCH Plaintiffs moved to modify the Decree. The
district court ordered expedited briefing. Initially Plaintiffs sought an indefinite extension, and
later, in the alternative, sought an extension for two presidential cycles, or eight years. On
August 5, 2013, the district court granted the motion, extending the Decree until December 31,
2016, one election cycle. (Aug. 5, 2013 Op.). First, it concluded that when they entered the
Decree, the parties did not foresee that the voting rights of SSN-4 voters would still not be
guaranteed after the Decree terminated in June 2013. Second, it found an extension until
December 31, 2016, was suitably tailored to ensure the counting of valid SSN-4 voters in the
next election cycle. The court relied on new record evidence from the 2012 election that
established the additional burden placed on boards of elections during presidential elections and
the accompanying risk of disenfranchisement of SSN-4 voters. Defendants did not appeal that
decision.
On July 1, 2013, the SEIU Local 1 Plaintiffs filed a motion for a permanent injunction
that would require the counting of correct-location/ wrong-precinct ballots based on this court’s
decision affirming the preliminary injunction, the evidence supporting that injunction, and
supplemental evidence regarding the 2012 election. Defendants did not object to converting the
preliminary injunction to a summary judgment. On July 9, 2013, the court granted summary
judgment and issued a permanent injunction. (July 9, 2013 Op.) Defendants did not appeal.
G. Attorneys’ Fees Motions and Awards
This brings us to the district court decision at issue in the present appeal.3 As noted, the
district court’s award and this appeal jointly address fees in the NEOCH and SEIU Local 1
cases.4
3
Plaintiffs have already received fees for work prior to the Decree and for negotiating the Decree. See
NEOCH v. Sec. of State of Ohio, 695 F.3d 563 (6th Cir. 2012).
4
The district court issued the same opinion in both cases. It is dated September 29, 2014 (Sept. 29, 2014
Op.). They are docketed at Doc. 426 in NEOCH, Case No. 2:06-cv-896, and Doc. 140 in SEIU Local 1, Case No.
2:12-cv-00562.
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1. The Attorneys
In the NEOCH case, Plaintiffs NEOCH and the Columbus Coalition for the Homeless
(CCH) were represented by Dayton and Columbus, Ohio counsel of Porter, Wright, Morris
& Arthur, LLP, as well as The Chandra Law Firm LLC, of Cleveland, Ohio. Lead attorneys
were Caroline Gentry of Porter Wright and Subodh Chandra of The Chandra Law Firm, along
with Sandhya Gupta. The Ohio Democratic Party (ODP) was represented by McTigue,
McGinnis & Colombo, LLC, of Columbus, Ohio. Donald McTigue acted as lead counsel and
Mark McGinnis as junior counsel. Plaintiff SEIU Local 1199 was represented by Altshuler
Berzon LLP, of San Francisco, California, and by Hunter, Carnahan, Shoub, Byard & Harshman,
of Columbus, Ohio. Altshuler Berzon billed for nine attorneys. Stephen Berzon acted as lead
counsel, while Danielle Leonard and Barbara Chisolm argued the cases. The NEOCH Plaintiffs
billed 2,357.85 hours, with requested rates ranging from $215/hour to $750/hour. They
requested a total of $967,593.25 in fees. The NEOCH Plaintiffs also submitted a separate fee
motion for the 2013 Decree extension.
In the SEIU Local 1 case, SEIU Local 1 and the other union plaintiffs were also
represented by Altshuler Berzon and Hunter Carnahan. Hunter Carnahan also represented the
Ohio Organizing Collaborative (OOC). NEOCH, CCH, and ODP were parties only in the
NEOCH case, not in SEIU Local 1. The SEIU Local 1 Plaintiffs billed 3,641.13 hours at rates
ranging from $300/hour to $750/hour. They requested a total of $1,383,436.75 in fees.
2. The Motions
The NEOCH Plaintiffs who had moved to extend the Decree through 2016 moved for
fees for that work on October 21, 2013. On December 12, 2013, all SEIU Local 1 and the
NEOCH Plaintiffs moved for fees in both cases (1) for work performed in 2012 and 2013
defending the Decree, (2) obtaining preliminary and then permanent injunctive relief prohibiting
disqualification of wrong-precinct/right-location ballots, and (3) the appeal of those decisions.
Plaintiffs did not seek fees for work performed concerning the wrong-location or
deficient-affirmation issues.
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3. The District Court’s Award
On September 29, 2014, the district court issued an order granting Plaintiffs’ motions for
fees in both cases, but it eliminated some time and reduced some of the requested rates. (Sept.
29, 2014 Op.). The court limited “fees for fees” hours to 3% of the time on the main cases.
a. Hours
The court found that, with certain exceptions, all of the hours submitted were reasonably
expended:
Both NEOCH and SEIU Plaintiffs have provided the Court with extensive
and detailed documentation of their hours, supported by affidavits of counsel
related to billing entries, efforts to exclude excessive or redundant hours, and
general exercise of billing judgment. The Court finds that Plaintiffs have
submitted documentation containing sufficient detail and probative value to
enable it to determine that the hours recorded were actually and reasonably
expended in this action, with certain exceptions explained below.
Id. at 6. The district court specifically stated that it had reviewed the time sheets and
declarations of each of the attorneys. Id. at 6-7.
Regarding the 2013 extension of the Decree, the court observed that the
NEOCH Plaintiffs were required to review and analyze the lengthy record and
docket of a seven-year-old case, numerous provisions of the Ohio Revised Code,
parallel and related litigation, in addition to substantive legal research, analysis,
and strategy. As the Court noted at the time, the legal issues around extending the
Decree were complex and unsettled . . . and the briefing scheduled was expedited
and required intense engagement by all parties.
Id. at 8.
Regarding the 2012 work to defend and modify the Decree, the court initially noted that
at least 23 attorneys, as well as paralegals and law clerks, worked on this stage of the litigation.
The court found that
Plaintiffs engaged in multiple avenues of defense in order to protect the Decree,
including to enjoin the collateral attack on the decree and move for civil
contempt; preparing on an expedited basis to intervene at the Ohio Supreme
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Court; defending the Decree against Defendants’ motion to vacate; and moving to
modify the Decree.
Id.Regarding the SEIU Plaintiffs’ work in obtaining preliminary and permanent injunctive
relief, the court recognized that
Plaintiffs achieved court orders preventing the disenfranchisement of thousands of
Ohio voters in 2012 and thereafter; the work required them to attack novel and
complex issues of constitutional law, and required them to collect and analyze
thousands of pages of evidence showing Ohio’s violations of voters’ rights.
Id.The district court rejected Defendants’ allegations that the hours expended in
“researching, drafting, editing, and consulting are too great,” stating “Defendants invoke a
phantom specter” because their “conclusory allegations that the award was excessive and . . .
counsel employed poor billing judgment” did not establish that the fees were unwarranted. Id. at
9 (internal quotation marks and citation omitted). The court added that “Defendants can hardly
be heard to complain about the number of hours expended by Plaintiffs, when they themselves
engaged in a vigorous opposition to the Decree at nearly every phase of this litigation.” Id.The court then addressed Defendants’ other objections, including attorneys’ fees for the
NEOCH Plaintiffs’ mediation costs, travel, fees for fees, SEIU Plaintiffs’ certification motion,
the NEOCH motion to modify the consent decree, and the NEOCH motion for contempt. In each
instance the court rejected Defendants’ arguments that the hours billed were excessive.
b. Rates
In assessing rates, the district court considered the customary rates of Plaintiffs’ counsel,
fee awards in analogous cases, and other evidence. The average rate awarded was $378/hour.
Twenty-one rates were $300/hour or more, ten rates were $425/hour or more, and one attorney
was awarded $600/hour. Law clerks received between $125/hour and $150/hour.
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c. Costs and Expenses
The court found that since nearly all of Plaintiffs’ hours of attorney work were
reasonable, their requested costs were also reasonable and appropriate.
In total, the district court allowed billing for 6,147 hours and awarded $2,227,179.90 in
fees and costs.
III. REASONABLE ATTORNEYS’ FEES
Section 1988 gives a court discretion to award “a reasonable attorney’s fee” to a
prevailing party. 42 U.S.C. § 1988(b). A reasonable attorney fee is calculated by the lodestar
method. See Blum v. Stenson, 465 U.S. 886, 888 (1984); Hensley v. Eckerhart, 461 U.S. 424,
433 (1983). The lodestar is “the number of hours reasonably expended on the litigation
multiplied by a reasonably hourly rate.” Hensley, 461 U.S. at 433.
The award-seeking party should submit evidence of the hours worked and the rates
sought. Id. If “documentation of hours is inadequate, the district court may reduce the award
accordingly.” Id. In determining hours, a court must “exclude from this initial fee calculation
hours that were not ‘reasonably expended.’” Id. at 434 (quoting S. Rep. No. 94-1011, at 6
(1976)). That is, fee applicants must exercise “billing judgment.” Id.; see also id. at 437.
Counsel are expected to “exclude from a fee request hours that are excessive, redundant, or
otherwise unnecessary, just as a lawyer in private practice ethically is obligated to exclude such
hours from his fee submission.” Id. at 434.
IV. STANDARD OF REVIEW
This court reviews a district court’s award of attorney fees and costs for an abuse of
discretion. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 551 (6th Cir. 2008). “A district
court abuses its discretion when it relies upon clearly erroneous findings of fact, applies the law
improperly, or uses an erroneous legal standard.” Id. (quoting Wikol v. Birmingham Pub. Schs.
Bd. Of Educ., 360 F.3d 604, 511 (6th Cir. 2004). Substantial deference “is appropriate in view of
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the district court’s superior understanding of the litigation and the desirability of avoiding
frequent appellate review of what essentially are factual matters.” Hensley, 461 U.S. at 437.
But that discretion “is not unlimited.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542,
558 (2010). “It is essential that the judge provide a reasonably specific explanation for all
aspects of a fee determination . . . .” Id. In other words, the court must provide “a concise but
clear explanation of its reasons for the fee award.” Hensley, 461 U.S. at 437; see also
Wooldridge v. Marlene Indus. Corp., 898 F.2d 1169, 1176 (6th Cir. 1990) (remarking that “[a]
district court should state with some particularity which of the claimed hours the court is
rejecting, which it is accepting, and why”), abrogated on other grounds by Buckhannon Bd.
& Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598 (2001).
V. APPEAL
A. Hours Awarded
Defendants contend that the district court abused its discretion by awarding 6000+ hours
in the two cases, highlighting eleven areas. We keep three things in mind as we address
Defendants’ arguments. First, Hensley focuses on the bottom line: “the most critical factor is the
degree of success obtained.” Hensley, 461 U.S. at 436. “Where a plaintiff has obtained
excellent results, his attorney should recover a fully compensatory fee.” Id. at 435. Second, in
assessing fees, district courts are not required to act as “green-eyeshade accountants” and
“achieve auditing perfection” but instead must simply to do “rough justice.” Fox v. Vice, 563
U.S. 826, 838 (2011). This means that the court can rely on estimates based on its “overall sense
of a suit.” Id. Third, because the district court has a superior understanding of the litigation, we
must afford “substantial deference” to its factual determinations. Id.; Hensley, 461 U.S. at 437.
We now examine Defendants’ complaints.
1. Attendance and Travel Time
Defendants claim that “[a] key feature of counsel’s excessive billing is duplicative
attendance and travel for court proceedings.” Defendants’ OB at 23. Defendants argue that
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Plaintiffs did not demonstrate the need for so many attorneys, mostly senior attorneys with high
rates, who were not arguing, and faults the district court for not explaining why it approved these
hours. Defendants also complain that counsel billed excessive travel, particularly out-of-state
travel. Defendants offer the following examples in support of their argument. First, they
complain that too many attorneys billed for telephone conferences, highlighting numerous
occasions when the number of attorneys who billed for a conference exceed the number of
attorneys who actually spoke at the conference.5
Defendants also complain about the hours billed for attendance at oral arguments. They
emphasize the sheer number of hours billed, the discrepancy between the number of attorneys
appearing at oral argument and the number of attorneys who actually argued, and the number of
attorneys who billed for travel. First, they assert that the hours billed for the June 27, 2012 oral
argument, which addressed the Decree’s validity and SEIU Local 1 scheduling, were excessive.
Counsel charged for eight attorneys to participate, but only three Plaintiffs’ attorneys handled the
proceedings: Leonard and Gentry argued the merits, and Chisolm addressed SEIU Local 1
logistics. They collectively billed 90 hours for argument-related travel, preparation, and
attendance for June 26 and 27 and 70 hours on the day of argument. At least four attorneys
billed travel. Second, Defendants object to the 100+ hours billed for the July 30, 2012 oral
argument concerning the SEIU Local 1 preliminary injunction motion and NEOCH motion to
modify. Plaintiffs charged attendance for ten attorneys, even though only Chisolm and Leonard
spoke. Between July 29 and 30, ten of these attorneys billed 100+ hours for hearing related
activities.6 Third, Defendants contend that counsel billed excessive hours for the October 1,
2012 telephonic oral argument in this court. Leonard argued. Six attorneys billed for
participation, five from Altshuler Berzon. Leonard billed 60 hours of argument preparation from
5
Defendants point out that thirteen attorneys billed for attendance at the May 9, 2012 telephone conference,
although only four spoke on behalf of Plaintiffs; eleven attorneys billed for attendance at the follow-up telephone
conference the next day, May 10, 2012, although only Gentry and Berzon spoke for Plaintiffs; and seven attorneys
billed for the May 16, 2012, scheduling conference, but only Gentry and Berzon spoke.
6
This included the travel for three Altshuler Berzon attorneys from San Francisco to Columbus and
Attorney Donita Judge from New Jersey on behalf of ODP. Defendants highlight Berzon’s billing because he did
not argue the motions—Leonard did—and she billed 40 hours in preparation from July 25-28. Berzon billed
24.5 hours on July 29-30 for hearing-related time, exclusive of expenses.
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September 25 to 30. Berzon also billed 21 hours from September 24 to 30. Fourth, Defendants
challenge the hours billed in connection with oral argument in the district court on July 12, 2013,
regarding the extension of the Decree. Plaintiffs charged for four attorneys to attend (travel for
three) and a total of 80+ argument-related hours.
The district court did not conduct an atomized line-item analysis of the hours allocated to
telephone conferences and oral arguments. However, the court found that Plaintiffs had
presented “extensive and detailed documentation of their hours,” which contained “sufficient
detail and probative value to enable” the court to make the factual determinations that “the hours
recorded were actually and reasonably expended in this action.” Sept. 29, 2014 Op., at 6. It
reiterated that “although multiple attorneys worked on these cases,” that was “no[t] inherently
unreasonable,” and that “[t]he time records submitted in these cases” were sufficiently detailed
and established proper billing judgment. Id. at 8-9. In light of Plaintiffs’ extensive
documentation, the court found that Defendants’ conclusory allegations that fees were
unwarranted did not establish that there was error. Id. at 9.
Multiple-lawyer litigation is common and not inherently unreasonable. See, e.g.,
Gautreaux v. Chicago Hous. Auth., 491 F.3d 649, 661 (7th Cir. 2007); ACLU v. Barnes,
168 F.3d 423, 432 (11th Cir. 1999); see also Coulter, 805 F.2d at 152 (remarking that “multiple
representation can be productive,” but “there is also the danger of duplication, a waste of
resources which is difficult to measure”). At the same time, Hensley made clear that in assessing
hours “reasonably expended,” the district court should evaluate whether the case is
“overstaffed.” Hensley, 461 U.S. at 434. The district court did just that. Its “concise but clear
explanation of its reasons for the fee award” is easily supported by the record. Id. at 437. Given
the extremely expedited pace in the few short months before the 2012 presidential election and
complexity of the litigation, the need for multiple attorneys to handle the various legal and
factual facets of the two cases is obvious. In early May 2012, the litigation was quickly taking
shape, so multiple attorneys’ attendance at telephonic conferences ensured that members of the
team were fully and efficiently informed. Furthermore, Plaintiffs were represented by different
counsel, and those counsel were required by local rule to attend all such proceedings. See S.D.
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Ohio Civ. R. 83.4(a) (“[I]n all actions filed in . . . this Court, all parties . . . must be represented
at all times by a ‘trial attorney’ . . . . The trial attorney shall attend all hearings, conferences, and
the trial itself unless excused by the Court from doing so.”).
The same is true for the hearings. Take, for example, the July 30, 2012 hearing on the
SEIU Local 1 preliminary injunction motion and the NEOCH motion to modify the Decree. This
was a critical hearing, as the district court’s Plenary Opinion and Order reflects. Counsel of
record—Donita Judge for OOC, Donald McTigue for ODP, Michael Hunter for SEIU 1199 in
NEOCH and the union plaintiffs in SEIU Local 1 as well as Subodh Chandra and Caroline
Gentry for NEOCH—, were required to be present. In addition to client representation, other
attorneys present at the hearing made specific contributions to the issues to be presented:
Leonard conducted substantive legal work in both cases; Chisolm conducted substantive work in
SEIU Local 1; Berzon provided substantive and strategic guidance; Chandra, Gentry, and
McTigue had knowledge of the NEOCH case history and substantive work on the pending
motions; and Miller and Harshman performed work on the evidence presented in both cases.
Given the importance of this hearing, complexity of the issues, and the number of parties
involved in the two cases, the number of counsel present does not seem unreasonable. In any
event, the district court was there and in a far better spot to assess whether the number of counsel
was necessary.
Moreover, in the face of Plaintiffs’ very detailed billing records ‘“conclusory allegations
that the award was excessive and that . . . counsel employed poor billing judgment . . . do not
suffice to establish that there was error . . . , particularly in light of the statements of the district
court [explaining the award] and our standard of review.’” Imwalle, 515 F.3d at 553 (quoting
Perotti v. Seiter, 935 F.2d 761, 764 (6th Cir. 1991)). As the district court found, Plaintiffs
presented detailed billing records as well as Declarations explaining the nature of the work
performed. Like the records in Imwalle, the itemized billing records for each entry specify the
date that the time was billed, the individual billing the time, and a brief explanation of the
specific task completed. See id. at 553. Plaintiffs’ counsel was “not required to record in great
detail how each minute of his time was expended,” as long as the general subject matter was
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identified. Hensley, 461 U.S. at 437 n.12.7 When read in conjunction with the timeline of the
litigation, the billing records support the district court’s determination that the hours charged
were reasonably expended. See Imwalle, 515 F.3d at 554.
The district court’s ruling that Plaintiffs’ requested fees for travel to and from the court
for various oral arguments was therefore proper. See, e.g., Wayne v. Vill. of Sebring, 36 F.3d
517, 532 (6th Cir. 1994) (holding that travel time is fully compensable); Perotti, 935 F.2d at 764(noting that “matters of this sort are within the discretion given the district court”).
2. Conferencing
Defendants complain that counsel spent unreasonable time conferencing with one
another. First, Defendants note that 1,190 entries—659 in SEIU, 531 in NEOCH—include some
form of internal conference. Defendants claim that routine block billing makes it impossible to
tell how much time is billed just for conferencing, but even a conservative estimate suggest 650+
conferencing hours (300 in NEOCH, 370 in SEIU Local 1). This amounts to more than a tenth of
the awarded hours.
“There is no hard-and-fast rule as to how many lawyers can be at a meeting or how many
hours lawyers can spend discussing a project.” Gautreaux, 491 F.3d at 661. As this court
remarked in Coulter, “[h]ours spent in reviewing records, talking to other lawyers or experts,
7
Defendants’ complaints about block billing are unfounded. This court has held block billing “can be
sufficient” if the description of the work performed is adequate. Smith v. Serv. Master Corp., 592 F. App’x 363, 371
(6th Cir. 2014); see also Pittsburgh & Conneaut Dock Co. v. Dir., Office of Workers’ Comp. Programs, 473 F.3d
253, 273 (6th Cir. 2007) (Moore, J., concurring in part and dissenting in part) (“[Plaintiff] has cited no authority to
support its argument that the use of block billing is contrary to the award of a reasonable attorney fee . . . and, in
fact, our sister circuits have rejected block-billing objections to fee awards in a number of contexts.”).
Defendants choose the following block-bill by Gupta in connection with the July 9, 2013 extension of the
Decree. Chandra argued the motion.
Review deposition transcripts of counties and tabulate into chart; prep co-
counsel S. Chandra for tomorrow’s oral argument; elaborate on case summaries
of termination cases for S. Chandra review; prepare B. Davis declaration and
confer with B. Davis re charges; prepare exhibits to declaration and notice of
filing; review outline and other potential questions for oral argument.
NEOCH, ID# 13744.
We find the description of the work performed by Gupta in helping Chandra prepare for oral
argument to be more than adequate in the context of this litigation.
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preparing legal documents and the like cannot be fully verified and require the court to trust the
lawyer’s word that the hours claimed represent necessary work actually performed.” Coulter,
805 F.2d at 150. Here, counsel provided detailed billing records and submitted declarations
stating that these discussions also permitted senior lawyers to provide important strategic
guidance to more junior lawyers, without duplicating efforts, thereby increasing efficiency. The
district court rejected Defendants’ argument that counsel spent too much time “consulting,”
crediting the lawyers’ accounts of their time based on the court’s intimate understanding of the
complexity of the proceedings before it. Sept. 29, 2014 Op., at 9. “[I]t is not this court’s job to
second-guess that judgment.” Gautreaux, 491 F.3d at 661. Again, given Plaintiffs’ detailed
documentation, and the district court’s explanation of the award, Defendants’ conclusory “too
many hours” allegations do not establish error.
3. Legal Research
Next, Defendants argue that counsel billed unreasonable and duplicative research hours.
In total, the NEOCH/SEIU Local 1 legal teams billed roughly 750 hours on research activities.
This included: fifteen NEOCH attorneys who billed their own research; eight SEIU Local 1
attorneys who billed their own research; Altshuler Berzon Attorney Diana Reddy’s 20+ hours
researching “expansion of consent decree”; Reddy’s 30+ hours researching civil contempt; and
law clerk research on numerous subjects by the Altshuler Berzon firm (9.8 hours researching
constitutional issues, 8 hours researching unlitigated HAVA claims, 9.4 hours researching
“1983 injunction,” 7.8 hours researching “deliberate indifference,” and 11.8 hours for an
evidentiary standards memo).
The district court disagreed, citing not only Plaintiffs’ detailed billing records and
Defendants’ conclusory allegations that the award was excessive, but also that Defendants had
mounted a vigorous opposition to the Decree and were therefore in no position to complain.
Sept. 29, 2014 Op., at 9. Further, the court expressly stated that the 2013 extension required
Plaintiffs to engage in “significant substantive legal research, analysis, and strategy”; that the
2012 work involved “multiple avenues of defense in order to protect the Decree”; and that the
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preliminary and permanent injunction motions required Plaintiffs “to attack novel and complex
issues of constitutional law.” Id. at 8.
Defendants retort that generic allusions to “complexity” and “novel and complex issues
of constitutional law” should not provide a free pass for scrutiny of the hours here. But the
district court specifically held that this case involved “significant novel and complex
constitutional and procedural issues, including the All Writs Act, the Anti-Injunction Act, the
applicability of Fed. R. Civ. P. 60(b), and the constitutionality of state laws and practices under
the Equal Protection and Due Process Clauses.” Id. at 29. We do not read the district court’s
“concise but clear explanation” in a vacuum, but against the backdrop of the comprehensive
written opinions of the district court and this court, which fully establish the complexity of the
numerous federal and procedural issues presented in these cases. Again, other than complaining
about the numbers, Defendants offer no explanation why the hours are excessive. Such
conclusory allegations do not provide us with any basis to discredit the district court’s factual
findings.
4. Drafting and Editing Filings
Defendants point out that the SEIU Local 1 team, which included six attorneys, charged
300 hours for drafting and editing the complaint and preliminary injunction motion,8 and an
additional 130 hours, involving six attorneys, for drafting and editing their twenty-page reply.
Similarly, the NEOCH Plaintiffs charged 150 hours, from eleven attorneys, to draft the motion to
enjoin.
Defendants note that the NEOCH team billed 190 hours, from thirteen different attorneys,
drafting, editing, or reviewing the May 30 brief regarding the Decree’s validity. The NEOCH
Plaintiffs also billed 215 hours between August 21 and September 4 for appellate brief work that
included work from ten different attorneys. The SEIU Local 1 Plaintiffs submitted 375+ hours
from six attorneys for the SEIU Local 1 appellate brief.
8
Leonard herself billed 120+ hours from June 7 to 21 on the preliminary injunction motion. Five other
attorneys billed for drafting and editing that motion. Reddy and Leyton billed a combined 22.1 hours described as
“Research and draft substantive due process argument.”
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Defendants also point to “excessive” time on minor filings, such as at least 8 hours to
provide notice to the district court that SEIU Local 1 was related to NEOCH/Hunter litigation.
Also SEIU Local 1 counsel billed 13 hours (four attorneys) for a case-related letter to this court.
Defendants maintain that the foregoing litany establishes that counsel spent unreasonable
hours on their motions and briefing, which often involved the same or similar issues. Defendants
claim abuse of discretion by the district court because its analysis was minimal—namely, that it
did not address the actual hours billed for drafting and editing, did not analyze any specific
billing entries, and offered merely “a brief, oversimplified mention of the State’s positions.”
However, other than aggregating the time spent on specific filings, Defendants offer no
explanation why the hours were excessive. Thus, as the district court held, Defendants failed to
meet their burden of establishing error in light of Plaintiffs’ detailed records and the district
court’s findings. See Imwalle, 515 F.3d at 553. Granted, numerous hours by more than several
attorneys were billed for drafting and editing motions and briefs. But those submissions,
prepared under extreme time pressure, helped the district court resolve the issues in this case in
Plaintiffs’ favor.
The district court’s overall assessment of hours reasonably expended was based on its
unique understanding and reliance on Plaintiffs’ research and advocacy. As we observed in
Coulter, “[w]hen the issue is a question of the lawyer’s judgment in billing for a particular
number of hours on a piece of work, we must depend in larger measure on the fairness of the
District Court in assessing the needs of the case.” Coulter, 805 F.2d at 152. To put it bluntly,
the district court assessed that Plaintiffs’ substantial success was due to the skill and substantial
efforts of counsel, and its expressly said so. That decision deserves substantial deference.
5. Unfiled Proposal
Defendants also assert that counsel unnecessarily increased hours by preparing a memo
addressing proposed findings of fact and conclusions of law in advance of the hearing on
Plaintiffs’ statewide preliminary injunction, which the district court did not request and did not
use. At the hearing the district court praised “the extensive briefing” in the case, stating that it
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put the court “in an excellent position to decide this PI [preliminary injunction] based on the
papers that have been filed and the arguments that have been made,” but it expressed concern
that the Plaintiffs’ proposed filing would “prolong the process” because Defendants might want
to file a response. NEOCH, 2:06-cv-896, ID# 12353-54.
The district court did not isolate the hours spent on the unfiled proposal in its opinion
awarding fees. Instead, it made an overall assessment. “[W]e look to see whether the District
Court, based on experience and the record in the case, misapplied the reasonable billing practices
of the profession.” Coulter, 805 F.2d at 151. Because work on the proposal was of a sort that “a
reasonable attorney would have believed . . . to be reasonably expended in pursuit of success at
the point in time when the work was performed,” Wooldridge, 898 F.2d at 1177, it cannot be said
that counsel exercised poor billing judgment. We find no abuse of discretion in allowing
compensation for such hours.9
6. Discovery
Defendants claim that Plaintiffs also billed excessive hours for gathering evidence and
preparing evidentiary declarations and attachments. Initially they note that it is impossible to
calculate an exact discovery total because of block billing, but the State estimates 1300+ hours
for coordinating discovery, organizing evidence, and filing declarations/exhibits. Defendants
also fault Plaintiffs for conducting discovery on all 88 Boards of Elections rather than a sample
of counties.
Defendants isolate 30 hours charged by staff from May 24 to 25 for travel to counties to
pick up and inspect documents. Attorney Jared Klaus of Porter Wright submitted numerous
entries referencing clerical tasks such as cataloguing emails and compiling records. On June 13-
14, 2012, he billed 15+ hours for “creating spreadsheet showing the status of public record
9
Defendants also claim that the NEOCH Plaintiffs billed more than 40 hours preparing an “unwarranted”
reply brief on May 10. On May 9, the district court had asked the Relators to prepare a response to Plaintiffs’
motion to enjoin to be provided by the end of the next day. The court did not ask for a reply brief, but NEOCH
counsel filed one anyway, thirty minutes prior to the court’s oral decision on May 10. Work performed on the reply
brief was properly billed because a reasonable attorney would have believed that a reply was necessary at the point
in time when the reply brief was prepared. See Wooldridge, 898 F.2d at 1177.
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requests to each county.” Defendants also point out that more senior attorneys billed for
extensive discovery. Attorney Cathrine Harshman of Hunter Carnahan block billed 12 hours for
“Preparation of subpoenas; request for production” on June 29. Attorney Michael Hunter of
Hunter Carnahan “block billed” another six hours the same day with an identical billing
description. Between July 2 and 11, Harshman reported 60 hours of document review and
conferencing with Election Boards.
The district court found that in securing the preliminary injunction, and ultimately the
permanent injunction, Plaintiffs were required “to collect and analyze thousands of pages of
evidence showing Ohio’s violations of voters’ rights.” Sept. 29, 2014 Op., at 8. The record
easily supports the district court’s findings. As Leonard explained in her Reply Declaration in
support of Plaintiffs’ Motions for Attorneys Fees, the amount of material received from the Ohio
County Boards and the Ohio Secretary of State was enormous, and not organized by subject
matter or relevance to the provisional ballot issues raised by the litigation. Counsel reviewed and
analyzed documents ranging from (1) minutes and transcripts from four years of County Board
of Election meetings where provisional ballots were discussed; (2) the Secretary of State’s
statistics on provisional ballots for four years of elections; (3) maps and diagrams of polling
locations; (4) training materials and Directives from the state and county boards with respect to
elections; (5) voter complaints and other incident logs from four years of elections; (6) county
address and street guides used by poll workers in the 2012 elections; and (7) records showing the
number and location of multi-precinct polling place locations. SEIU Local 1, No. 2:12-cv-562,
ID # 7333. This information had to be gathered in a very short period of time for incorporation
into the motion for a preliminary injunction. For this reason it is not surprising that several
attorneys, including senior attorneys, participated in the process of gathering and analyzing these
materials.
Furthermore, as recited above, in its Plenary Opinion and Order, the district court relied
heavily on the gathered evidence in finding that the problem of disqualifying wrong-precinct
ballots due to poll-worker error was “systemic and statewide.” Aug. 27, 2012 Op. at 26. This
court’s opinion affirming the district court cited extensively to the volume of evidence.
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See NEOCH, 696 F.3d at 586. Indeed, the discovery supported the requested relief in these
cases. As the district court recognized, the SEIU Local 1 lawsuit presented ‘“the hypothetical
statewide challenge’ foreseen by the Hunter I Court.” Aug. 27, 2012 Op. at 18; see also
NEOCH, 696 F.3d at 593 n.7 (“These findings regarding the statewide disqualification of wrong-
precinct ballots amplify the countywide evidence established in Hunter.”). Offering a small
sample of county boards might have allowed Defendants to argue that the evidence was
insufficient to warrant statewide pre-election injunctive relief.
Defendants’ complaint about Klaus’s hours is unwarranted. As the NEOCH Plaintiffs’
explain, Klaus’s billing entries established that he “field[ed] calls from Board of Election
officials responding to public record requests,” NEOCH, 2:06-cv-896, ID# 13963-64, conducted
legal research on public-record requests, and drafted correspondence to non-responsive boards.
Klaus was a first-year associate at the time, and it was not unreasonable to have him compile and
coordinate the public record requests.
Next, Defendants point to the number of declarations filed. The NEOCH Plaintiffs
submitted 17 declarations (8 reply declarations) with their motion to modify. The SEIU Local 1
Plaintiffs also filed numerous declarations, reply declarations, and supplemental reply
declarations in connection with their preliminary injunction motion.10
Defendants’ utterly conclusory allegations defeat serious consideration of this claim.
See Imwalle, 515 F.3d at 553. The district court reviewed these declarations and found, as part
of its overall assessment of the hours expended, that the requested hours were reasonable.
Again, based on the district court’s direct experience, the record itself, and the absence of any
explanation from Defendants, we find no abuse of discretion.
10
According to Defendants, in SEIU Local 1, seven attorneys from Altshuler Berzon billed for drafting,
editing, and/or reviewing declarations. From June 13 to 17, Reddy billed 44.3 hours for reviewing documents and
drafting declarations. During the same period, Cincotta spent 25 hours reviewing documents and drafting
declarations. From June 18 to 22 Harshman billed 34 hours for primarily preparing exhibits and declarations,
including 14.5 hours on June 22 for “Preparation of exhibits for filing; electronic filing of complaint and PI motion
and exhibits; service copies.”
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7. Consent Decree Extension
Defendants complain that counsel billed excessive time, 335 hours, for obtaining the
2013 Decree extension, despite the narrow issue. This included 150 hours preparing the motion
to extend; 65 hours preparing a reply brief; and 80 hours for argument preparation, attendance,
and travel. Defendants claim that this time for the extension (which was not appealed) was
unreasonable because counsel was already familiar with NEOCH.
The district court specifically found that the hours expended in obtaining the Decree
extension were reasonable because the case had a lengthy record, it involved numerous
provisions of the Ohio Revised Code and parallel state and federal litigation, the legal issues
were “complex and unsettled,” and the briefing scheduled was expedited. Moreover, it found
that, based on new record evidence from the 2012 election, an extension through the next
presidential cycle was necessary to prevent the disenfranchisement of SSN-4 voters. Again,
Defendants’ conclusory allegations of “too much time,” in light of the district court’s “concise
but clear explanation” based on its substantial experience with these proceedings, cannot
establish error.
8. Post-Appeal Activities
Defendants claim that SEIU Local 1 attorneys spent an unreasonable amount of time,
190 hours, on post-appeal activities, including obtaining unopposed relief. First, Defendants
fault the SEIU Local 1 Plaintiffs for filing a 35-page motion, eight additional exhibits, a
proposed order, and a separate motion seeking expedited consideration of the permanent
injunction since they had already prevailed. The drafting was delegated to Laura Trice of
Altshuler Berzon, who had no SEIU Local 1 experience. Additionally, attorneys charged
50 hours for assorted activities, including drafting and editing a “strategy memo” and reviewing
the NEOCH litigation. Plaintiffs billed 100 hours (seven attorneys) in relation to the permanent
injunction filings.
The district court expressly rejected Defendants’ challenge to the amount of time
(including the use of a new attorney) spent on the permanent injunction motion: “The Court is
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satisfied that Plaintiffs’ work in seeking a permanent injunction, and providing the Court with
the factual and legal basis to enter its Order, was of the sort that a reasonable attorney would
have believed to be reasonably expended in pursuit of success” when the work was performed.
Sept. 29, 2014 Op., at 15 (internal quotation marks, edits and citation omitted). Again, the
district court provided a “concise but clear explanation” that is entitled to substantial deference
by this court. As Plaintiffs argued in the district court, no competent counsel would ask the
district court to rubber stamp a conversion of a preliminary injunction into a permanent
injunction without providing legal and factual support.
Defendants also assert that the only 2013 work within the scope of the SEIU Local 1 fee
motion was obtaining a correct-place/wrong-precinct permanent injunction, but that counsel for
the SEIU Local 1 Plaintiffs billed 30 hours for the 2013 mediation, with entries from seven
attorneys, despite the fact that the mediation focused on other issues. The district court reviewed
the time records and found that the fees related to mediation (as to the NEOCH Plaintiffs) were
proper because in the months prior to June 30, 2013, the parties engaged in settlement
discussions without reaching an agreement, and the NEOCH Plaintiffs decided to move for an
extension of the Decree as the expiration date approached. Sept. 29, 2014 Op., at 10-11. As to
the SEIU Local 1 Plaintiffs, Defendants have not provided any evidence to support their claim
that the time included issues other than those upon which Plaintiffs prevailed. In the context of
the overwhelming success Plaintiffs achieved, the district court did not abuse its discretion for
failing to trim hours devoted to a process that moved the entire litigation along.
9. Contempt request
Approximately 130 hours (from ten attorneys) of the 532 hours spent on the motion to
enjoin phase reference contempt. The district court denied the request to hold the Relators in
contempt, instead giving the Relators a chance to comply with the injunction. Defendants
therefore claimed that Plaintiffs’ request for contempt was premature. However, the district
court agreed with Plaintiffs that seeking to hold the Relators in contempt was a reasonable
alternative strategy, given the Relators’ “extraordinary actions in attempting to circumvent” the
Decree, the short time frame, and Ohio Supreme Court proceeding. Sept. 29, 2014 Op., at 17-18.
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Again, the district court’s factual determination is entitled to substantial deference, for good
reason, because the district court was in the trenches of this litigation. Even if we thought the
amounts were high, “the call was not initially delegated to us, and that makes all the difference.”
Ohio ex rel. Skaggs v. Brunner, 629 F.3d 527, 532 (6th Cir. 2010).
10. Attempted Class Certification
Counsel billed 115 hours for their attempt to certify a defendant class of all members of
Ohio’s 88 Boards of Elections. Defendants assert that the time was unnecessary, because the
SEIU Local 1 Plaintiffs voluntarily withdrew their certification attempt after the district court
ruled that the Secretary has direct authority over Board members. See, e.g., Ohio Rev. Code
§ 3501.05(B). The district court held that although the motion was ultimately moot, given its
conclusion that the county boards of elections are agents of the Secretary, Plaintiffs were not
unreasonable in seeking to certify the class because one month earlier, in NEOCH, “the State
legislators had argued that they were not bound by the Decree, and so could not be enjoined to
comply with it.” Sept. 29, 2014 Op., at 16.
Defendants claim that the district court’s holding rests on a confusing comparison of the
county board members to the Relators who brought the Supreme Court mandamus action.
However, as the district court explained, it was not unreasonable for Plaintiffs to seek a remedy
that would apply statewide, given the Relators’ attempt the previous month to circumvent the
Decree. Again, such work was of a sort that a reasonable attorney would have believed at the
time was necessary to success. See Wooldridge, 898 F.2d at 1177.
11. NEOCH Motion to Modify Decree
Lastly, Defendants complain that counsel should not have billed any hours, much less
more than 300 hours, for the NEOCH motion to modify, which they claim was subsumed by the
broader motion for preliminary injunction in SEIU Local 1. They point out that the NEOCH
Plaintiffs filed their motion to modify on June 20, seeking to modify the Decree. The motion
applied only to SSN-4 voters and was based on ongoing equal protection and substantive due
process violations. Two days later, SEIU Local 1 Plaintiffs, represented by essentially the same
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attorneys—ten of the twelve SEIU Local 1 attorneys were also NEOCH attorneys—filed a
separate motion for a preliminary injunction. The SEIU Local 1 motion also rested on equal
protection and substantive due process challenges to provisional ballot practices and sought the
same injunctive relief.
The district court recognized that the relief sought was overlapping, stating in its Plenary
Opinion and Order that “the requested relief in the Motion to Modify is encompassed within the
Plaintiffs’ proposed injunction in the Motion for Preliminary Injunction” and “the basis for relief
in the Motion to Modify depends on the determination of the constitutional violations at issue in
the SEIU case.” Aug. 27, 2012 Op., at 1. The NEOCH Plaintiffs admitted that the motions
sought the same injunctive relief and requested that “these motions be heard together, so that the
constitutionality or unconstitutionality of Ohio’s provisional ballot system may be adjudicated
prior to the upcoming election.” Motion to Modify, NEOCH, 2:06-CV-896, at 5; ID# 6910.
The district court found that the time spent pursuing a motion to modify the NEOCH
Decree was reasonable, accepting Plaintiffs’ argument that the motion “was undertaken to
prevent constitutional violations in the November 2012 implementation of the Decree that would
have rendered it vulnerable to post-election attack and vacatur.” Sept. 29, 2014 Op., at 16-17
(internal quotations and citation omitted). Furthermore, the motion was not denied; the court’s
ultimate order granted the same equitable relief requested by the motion to modify. Thus, the
court found that the NEOCH Plaintiffs’ work was reasonably undertaken at the time performed.
Id. at 17.
The district court did not abuse its discretion. Modification of the Decree would have
extended through 2013, whereas the SEIU Local 1 injunction only covered the November 2012
election. The motion to modify the Decree and the motion for a preliminary injunction arose in
different cases, by different parties, in different procedural contexts. Furthermore, the NEOCH
motion to modify involved distinct legal arguments regarding Rule 60, which was not at issue in
the SEIU Local 1 preliminary injunction. As the district court noted, had Plaintiffs not moved
for modification, the Decree would have been vulnerable to constitutional attack, since it
provided protection for SSN-4 voters who cast wrong-precinct ballots due to poll-worker error
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but not for others. Thus, that counsel sought overlapping relief for the 2012 election on behalf of
their separate clients did not render the work in NEOCH unreasonable.
12. Recap
Although Defendants vigorously and repeatedly tell us that requested hours are
unreasonable, they never tell us how and why the hours were excessive except to say that they
are “too high.” Other than aggregating numbers, Defendants have utterly failed to establish that
the requested hours were unnecessary in the context of the litigation before the district court and
this court and that counsel exercised poor billing judgment.11 In light of Plaintiffs’ detailed
billing records and declarations, which provide a comprehensive picture of how the hours were
spent, and the district court’s “concise but clear explanations,” Defendants have failed to show
that the district court abused its discretion in awarding the requested hours.
As detailed above, the record speaks for Plaintiffs. As the district court observed,
“Plaintiffs’ victory in this case was . . . a substantial victory in a hugely complex case involving
unsettled areas of both constitutional and procedural law.” Sept. 29, 2014 Op. at 26. In the
course of just over six months, the NEOCH Plaintiffs defeated an effort to render the federal
Decree void through state Supreme Court original proceedings; assembled “voluminous
evidence” of poll-worker error causing voter disenfranchisement; defended the Decree against
vacatur on appeal, including prevailing on both the Rule 60 standard and application of that
standard to the Decree; and then, along with SEIU Local 1 Plaintiffs, obtained, and successfully
defended on appeal, a major voting rights opinion from this court, a statewide injunction
requiring state officials to count tens of thousands of ballots that would otherwise have been
rejected in the then-imminent general election. That injunction was later converted to a
permanent injunction. The SEIU Local 1 case involved complex and novel issues of equal
protection and due process in the context of election administration. The Bush v. Gore equal
11
We find it curious, or perhaps not so, that Defendants did not attempt to establish unreasonableness by
contrasting Plaintiffs’ hours with the time expended by their attorneys. In essence, Defendants are asking this court
to cull through the records and conduct an atomized line-item review. But as stated throughout this opinion, the
Supreme Court does not require district courts to conduct such an analysis and precludes us from micromanaging fee
awards.
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protection issues raised by the Decree itself were unprecedented and complex. Finally, the
NEOCH Plaintiffs obtained an extension of the Decree through the end of the next Presidential
cycle, until December 31, 2016. The district court not only had a front-row seat during these
proceedings, but it actively participated by resolving the complex issues in this case in
comprehensive written opinions produced on an expedited basis, with the aid of substantial
expertise and effort from Plaintiffs’ counsel in the face of vigorous opposition by Defendants.
The district court’s 31-page opinion explained the bases for its fee award as to the hours
reasonably expended. That decision is entitled to substantial deference. We find no abuse of
discretion.
Given this conclusion, we need not address Defendants’ request for an across-the-board
reduction.
B. Rates Awarded
Defendants contend that the district court “awarded rates too high to too many lawyers.”
Defendants’ OB at 15. The following chart displays the rate requested by each attorney and the
rate awarded by the district court:
Firm Attorney Rate Rate awarded
($ hr)
Altshuler Berzon LLP Stephen P. Berzon 750 600
Jonathan Weissglass 615 550
Stacey M. Leyton 565 475
Danielle E. Leonard 490 450
Peder Thoreen 490 450
Barbara J. Chisholm 490 450
Caroline Cincotta 355 320
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Diana Reddy 340 305
Matthew Murray 320 290
Laura Trice 240
Law Clerks 215 150
Chandra Law Firm Subodh Chandra 435 425
Ashlie Case Sletvold 350 350
Sandhya Gupta 300 300
Paralegals 120 120
McTigue & McGinnis Donald McTigue 550 450
J. Corey Colombo 360 360
Mark A. McGinnis 360 360
Porter, Wright, Morris & Arthur Kathleen Trafford 445 445
Caroline Gentry 350 350
L. Bradfield Hughes 335 335
Eric Gallon 335 335
Daniel Miller 275 275
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Jared Klaus 215 215
Law Clerks 125 125
Paralegals, support 125 125
Hunter, Carnahan, Shoub, Byard Michael J. Hunter 450 450
& Harshman
Cathrine Harshman 300 300
Advancement Project Donita Judge 375 375
Defendants contend that the following rates are unreasonable—twenty-one rates of
$300/hour or more, ten rates of $425/hour or more, and one $600 rate. Defendants argue that the
awarded rates exceed what was necessary to attract capable counsel in Southern Ohio. In
support they point to the rates awarded in other Ohio election law cases, an Ohio bar survey, and
the rates of Plaintiffs’ own in-state counsel in the current award.
The district court has broad discretion in determining a reasonable hourly rate for an
attorney. Wayne, 36 F.3d at 533. To determine a reasonable hourly rate, courts use as a
guideline the prevailing market rate, which is defined as “the rate that lawyers of comparable
skill and experience can reasonably expect to command within the venue of the court of record.”
Geier v. Sundquist, 372 F.3d 784, 791 (6th Cir. 2004); see also Blum, 465 U.S. at 895 (stating
that “[t]he statute and legislative history establish that ‘reasonable fees’ under § 1988 are to be
calculated according to the prevailing market rates in the relevant community”). Thus, the
appropriate rate is not necessarily the exact rate of a particular firm, but the market rate in the
venue sufficient to encourage competent lawyers in the relevant community to undertake legal
representation. Gonter v. Hunt Valve Co., 510 F.3d 610, 618 (6th Cir. 2007). A district court
may look to “a party’s submissions, awards in analogous cases, state bar association guidelines,
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and its own knowledge and experience in handling similar fee requests.” Van Horn v.
Nationwide Pro. & Cas. Ins., 436 F. App’x 496, 499 (6th Cir. 2011). Furthermore, while the
district court may take into consideration an attorney’s skill level in identifying the market rate,
this Circuit holds that “reasonable” fees need not be “liberal” fees, and that “[s]uch fees are
different from the prices charged to well-to-do clients by the most noted lawyers and renowned
firms in a region.” Coulter, 805 F.2d at 149.
Where a fee applicant seeks to recover fees for an out-of-town specialist, the district court
must determine “(1) whether hiring the out-of-town specialist was reasonable in the first
instance, and (2) whether the rates sought by the out-of-town specialist are reasonable for an
attorney of his or her degree of skill, experience, and reputation.” Hadix v. Johnson, 65 F.3d
532, 535 (6th Cir. 1995). If competent counsel was readily available locally at a lower charge or
rate, the district court may apply local market rates to the services provided by the out-of-town
specialist. Id. at 535, 536. Although “special skill and experience of counsel should be reflected
in the reasonableness of the hourly rates,” Blum, 465 U.S. at 898, “[s]ection 1988 does not
guarantee civil rights plaintiffs the best counsel in the country; it guarantees them competent
counsel,” Hadix, 65 F.3d at 535. Further, the mere fact that a particular attorney “has a national
reputation for expertise in [the relevant] kind of litigation does not constitute proof that [the
attorney’s] expertise was necessary” to the litigation. Id.Defendants point to the rates awarded in several analogous cases from Southern Ohio.
See Ohio Right to Life Soc’y v. Ohio Elections Comm’n (ORTL), 590 F. App’x 597, 602 (6th Cir.
2014) (affirming district court’s reduction of requested hourly rates ranging from $445 to
$465/hour by lead attorney to $250/hour following a preliminary injunction and a consent
judgment in a civil rights action for work performed between 2008 and 2010); Hunter v.
Hamilton Cnty. Bd. of Elections, No. 1:10cv820, 2013 WL 5467751, at *17 (S.D. Ohio Sept. 30,
2013) (awarding McTigue $400/hour, McGinnis $250/hour, and Chandra $410/hour in 2010-12
on same law at issue in this case); Libertarian Party of Ohio v. Husted, No. 2:11-cv-722, 2013
WL 4833033, at *4-5 (S.D. Ohio Sept. 11, 2013) (Marbley, J.) (awarding $300/hour from
requested rate of $350/hour for work performed in 2011-12 to challenge rules governing ballot
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access in Ohio elections because counsel ultimately obtained all of the relief sought); Harkless v.
Brunner, No. 1:06 CV 2284, 2011 WL 2149138, at *4 (N.D. Ohio May 31, 2011) (adopting rates
applied in Project Vote in a voting rights challenge); NEOCH v. Brunner, No. 2:06-cv-896, 2010
WL 4939946, at *7 (S.D. Ohio Nov. 30, 2010) (Marbley, J.) (finding Chandra’s requested rate of
$400/hour and Gentry’s requested rates of $280/hour and $290/hour reasonable for work
performed preparing their first two motions for attorneys’ fees in connection with 2006 and
2007 litigation sub judice, during the appeal of those motions, and negotiating the Decree), aff’d
NEOCH v. Secy of Ohio, 695 F.3d 563 (6th Cir. 2012); Moore v. Brunner, No. 2:08-cv-224,
2:08-cv-555, 2010 WL 317017, at *2-3 (S.D. Ohio Jan. 10, 2010) (order) (rejecting requested
rates of $400 and $450 as exceeding the amount necessary to encourage competent lawyers to
take the case; finding $250/hour adequate but also applying a multiplier of 1.25 to reflect the
exceptional results obtained in the cases); NEOCH v. Brunner, 652 F. Supp. 2d 871, 885 (S.D.
Ohio 2009) (Marbley, J.) (noting that three attorneys, including Chandra, requested hourly rates
above $300/hour for work performed between 2006 and 2008, stating that “[e]ach of those
attorneys has substantial expertise in litigating not only civil rights cases, but more specifically
election law civil rights actions” and that the requested billing rates for those attorneys (from
$280 to $395 per hour) is reasonable and comparable to the rates of other attorneys of similar
skill and experience in Columbus, Ohio”); Ray v. Franklin Cnty. Bd. of Elections, No. 2:08-CV-
1086, 2009 WL 1542737, at *5 (S.D. Ohio June 2, 2009) (approving $350/hour for lead counsel
in election law case); Project Vote v. Blackwell, No. 1:06-CV-1628, 2009 WL 917737, at *14 &
n.11 (N.D. Ohio Mar. 31, 2009) (noting that the plaintiffs failed to present evidence as to
reasonable hourly rates in the Northern District of Ohio or that they required an out-of-town
specialist, and relying on an Ohio State Bar publication and its own experience to grant an award
of $310-$450/hour to partners in complex election law case in 2006-07, including $400/hour to
McTigue and $175/hour to McGinnis).
The district court relied on three of those cases. First it noted that in Libertarian Party of
Ohio v. Husted (LPO), a voting rights case challenging an Ohio law governing ballot access, the
plaintiffs achieved a preliminary injunction, which was vacated on appeal because the bill was
repealed. Noting that fees in similar cases ranged from $300-$400, the district court (Judge
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Marbley) in LPO rejected plaintiffs’ counsel’s request for $350/hour and instead awarded
$300/hour as sufficient to attract competent local counsel.
In Hunter, Chief Judge Dlott, after undertaking an extensive analysis of the proper
attorney rates in the District, awarded a fee of $410/hour for certain experienced counsel,
including Chandra. The court consulted the rates set by the 1983 Rubin Committee, with a
4% cost-of-living adjustment. 2013 WL 5467751, at *17. The Hunter court remarked that the
requested rates were
below the rates awarded to other plaintiff’s attorneys in Ohio with similar years of
experience. For example, in 2010, this Court awarded fees to the following
attorneys at the following rates: Jim Helmer (admitted 1975)—$498 per hour;
Frederick Morgan, Jr. (admitted 1983)—$500 per hour; Julie Popham (admitted
1992)—$425 per hour; and Jennifer Verkamp (admitted 1996)—$450 per hour.
U.S. ex rel. Ellison v. Visiting Physicians Ass’n, P.C., No. 1:04–cv–220, 2010 WL
2854137 (S.D.Ohio July 19, 2010). The prior year, the District Court approved
experienced counsel rates ranging from $351 to $497 per hour in an ERISA
matter. West, 657 F.Supp.2d at 934. And in 2009, the District Court awarded
fees to Mr. McTigue at $400 per hour and Mr. McGinnis at $250 per hour.
Project Vote v. Blackwell, No. 1:06cv1682, 2009 WL 917737 (N.D.Ohio March
31, 2009). And the Sixth Circuit recently affirmed a decision from the Northern
District of Ohio in which the court approved rates ranging from $250 to $450 per
hour, depending on each attorney’s experience. Van Horn v. Nationwide Prop.
and Cas. Ins. Co., 436 F. App’x 496, 499 (6th Cir.2011).
Id.In a prior ruling in the case sub judice, the same district court (Judge Marbley) awarded
rates ranging from $325/hour to $400/hour for fees related to work performed from January 2009
to April 2010 for briefing and arguing the plaintiffs’ prior motions for fees and costs; opposing
and settling the State of Ohio’s appeal of this court’s award of fees; and negotiating the Decree.
NEOCH, 2010 WL 4939946, at *2. Chandra was awarded fees at a rate of $400/hour and Gentry
at a rate of $290/hour. Id. at *7. (Altshuler Berzon had not yet been hired to represent the
NEOCH Plaintiffs.)
Defendants direct our attention to ORTL, where the district court rejected $450/hour rates
during the relevant time frame for “experienced attorneys litigating election-law actions.”
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ORTL, No. 2:08-cv-492, 2013 WL 5728255, at *6 (S.D. Ohio Oct. 22, 2013) (magistrate judge’s
ruling) (adopted with modification by 2014 WL 234677). The magistrate judge in that case
relied on Moore v. Brunner, an election law action litigated in a similar time frame in the
Southern District of Ohio, which held that “‘an hourly rate of $250 is adequate to attract
competent counsel’” within the venue and would not produce a windfall for attorneys. Id.(quoting Moore v. Brunner, No. 2:08-cv-224, 2010 WL 317017, at *3 (S.D. Jan. 25, 2010)).
This applied to counsel who “‘enjoy[ed] high levels of experience and expertise.’” Id. (quoting
Moore, 2010 WL 317017, at *2). The Moore court relied on a survey of the 250 largest law
firms in the country, including three Ohio firms. The partner fee rates for the Ohio firms were
$220 to $495, $225 to $490, and $200 to $475. Moore, 2010 WL 317017, at *3.
This court affirmed those rates, crediting the district court’s reliance on “the thorough
analysis set forth in Moore”:
While courts have approved higher hourly rates, it was within the district court’s
“broad discretion” to rely on the thorough analysis set forth in Moore to
determine an appropriate hourly rate for calculating the lodestar. Wayne, 36 F.3d
at 533. The underlying actions in Moore involved election law disputes during
the same time frame as the instant action, and the Moore court based its
$250 hourly rate on the hourly rates billed by law firms in the relevant geographic
region. Furthermore, while the district court may take into consideration an
attorney’s skill level in identifying the market rate, this Circuit has consistently
held that “reasonable” fees need not be “liberal” fees, and that “[s]uch fees are
different from the prices charged to well-to-do clients by the most noted lawyers
and renowned firms in a region.” Coulter v. State of Tenn., 805 F.2d 146, 149
(6th Cir.1986). Accordingly, the district court did not abuse its discretion in
basing its lodestar calculations on an hourly market rate of $250.
ORTL, 590 F. App’x at 602. Defendants also point out that the same district court (Judge
Marbley) reduced the rate of an attorney with over twenty years of experience from $350 to
$300/hour for 2011 work in LPO. See LPO, 2013 WL 4833033, at *4-5.
Nonetheless, as we observed in ORTL, “courts have approved higher hourly rates.”
ORTL, 590 F. App’x at 602. Given the district court’s broad discretion we cannot say that the
district court abused it in awarding the Ohio attorneys, who have substantial experience and
expertise in election law cases, their prevailing market rates other than McTigue ($450/hour
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instead of $550/hour) and Chandra ($425/hour instead of $435/hour), since those amounts are
not out-of-line with other cases in the venue of record). See Hadix, 65 F.3d at 536 (observing
that “normal billing rates usually provide an efficient and fair short cut for determining the
market rate” (internal quotation marks and citation omitted)); see also Waldo v. Consumers
Energy Co., 726 F.3d 802, 822 (6th Cir. 2013) (district court did not abuse its discretion in
awarding hourly rate of $400/hour, although “on the high end,” where the court found that lead
counsel was a “highly respected, experienced and accomplished practitioner in civil rights and
employment litigation” and the rate was not outside the range of reported rates for highly
experienced attorneys in the area). Furthermore, the district court distinguished LPO, noting the
complexity of the NEOCH/SEIU Local 1 cases and the greater amount of labor required. Sept.
29, 2014 Op., at 26.
But the rates for the Altshuler Berzon attorneys are a different story. They clearly are out
of step with the local market, and the district court did not explain why the rates for these
attorneys are higher than the comparable Ohio attorneys in the case or even how it calculated the
reductions for the Altshuler Berzon attorneys. For example, Gentry from Porter Wright in
Columbus, Ohio charged $350/hour, her actual rate in 2012. Gentry graduated from Yale Law
School in 1995, was a federal clerk, and is a partner at a prominent Columbus firm. Yet seven
attorneys from Altshuler Berzon with less experience billed a higher rate than Gentry. Four such
attorneys (Leyton, Leonard, Chisholm, and Thoreen) received $100/hour more than Gentry.
Weissglass, an attorney with one more year of experience, received $200/hour more.
Plaintiffs offered the declaration of Daniel R. Mordarski, who attested that Altshuler
Berzon attorneys “have a long history of successfully engaging in sophisticated and complex
litigation at all level[s] of federal and state court, including in a number of significant elections
cases” and that their hourly rates were comparable to the typical rates for top lawyers in Ohio
firms like Jones Day, Squire Sanders (now Squire Patton Boggs), and Baker & Hostetler.
NEOCH, No. 2:06-cv-896, ID# 14072-73. Plaintiffs, however, have not claimed that the
Altshuler Berzon attorneys were out-of-town specialists whose expertise was necessary in this
Ohio case. The mere fact that Altshuler Berzon attorneys may have a national reputation for
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expertise in election law litigation is not proof that their expertise was necessary in this litigation.
See Hadix, 65 F.3d at 535. Absent any explanation for the differential rates between Altshuler
Berzon attorneys and local counsel, we are required to hold that the district court abused its
discretion and remand for recalculation of the rates of the Altshuler Berzon attorneys in
accordance with the legal principles outlined above, along with a suitable explanation as to how
it reached its conclusions.
The district court’s rejection of a report by the Ohio State Bar Association, “The
Economics of Law Practice in Ohio in 2013” (OSBA Report), as a comparison point was not an
abuse of discretion. The survey set forth billing rates of 1000 Ohio private practitioners, only
about half of the active attorneys in Ohio, and it does not provide information regarding the skill,
experience, and reputation of those who responded. The report, “by its own terms,” states that it
was “‘not intended for use in setting minimum, average, or maximum attorney fees or salaries.’”
Sept. 29, 2014 Op., at 25 (quoting OSBA Report at 4). The author of the report explained that it
“significantly understates” rates because many attorneys failed to respond. Id. at 26 (quoting
OSBA Report at 5). Finally, the data available for civil rights attorneys (twenty-six in all) was
similar to the rates sought by Plaintiffs--$400-500/hour for primary civil rights lawyers, and
$300-$550 /hour for partial civil rights practitioners. Id.
VI. CROSS-APPEAL
Plaintiffs argue that the district court should have declined to apply the Coulter 3% rule because
“unusual circumstances” justified a higher award. Plaintiffs and Amici also urge us to abandon
the Coulter presumptive cap altogether. We agree that intervening Supreme Court authority has
undermined Coulter’s presumptive cap for fees for fee awards and therefore abrogate that ruling
today. Accordingly, we need not address Plaintiffs’ argument that “unusual circumstances”
warranted a departure from the rule. We now turn to our reasons for abrogating Coulter.
At issue is Coulter’s holding that
[i]n the absence of unusual circumstances, the hours allowed for preparing and
litigating the attorney fee case should not exceed 3% of the hours in the main case
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when the issue is submitted on the papers without a trial and should not exceed
5% of the hours in the main case when a trial is necessary.
Coulter, 805 F.2d at 151. Plaintiffs and Amici claim that a presumptive cap for fee awards in
support of a successful fee petition is inconsistent with intervening Supreme Court precedent,
namely Commissioner, I.N.S. v. Jean, 496 U.S. 154 (1990). Although this court has reaffirmed
the Coulter rule in the twenty-five years since Jean was decided, see, e.g., NEOCH, 695 F.3d at
574 (and cases cited therein); Gonter, 510 F.3d at 620-21, we have not examined whether Jean,
which was decided four years after Coulter, calls for a re-examination of its presumptive cap.
Although one panel may not disturb the ruling of a prior panel absent en banc review, see 6th
Cir. R. 32.1(b) (“Published panel opinions are binding on later panels.”); Valentine v. Francis,
270 F.3d 1032, 1035 (6th Cir. 2001) (holding that en banc review is required to overrule a prior
published opinion), an intervening Supreme Court decision gives us the right to revisit this
question, see Collard v. Kentucky Board of Nursing, 896 F.2d 179, 183 (6th Cir. 1990). This is
true even in the unusual situation where binding circuit precedent overlooked earlier Supreme
Court authority. Ballinger v. Prelesnik, 709 F.3d 558, 561-62 (6th Cir. 2013) (holding that the
rule for habeas review in Brown v. Smith, 551 F.3d 424 (6th Cir. 2008), had been called into
doubt by Harrington v. Richter, 562 U.S. 86 (2011), even though Robinson v. Howes, 663 F.3d
819, 823& n.2 (6th Cir. 2011), which was decided after Harrington, applied Brown); see also
Atl. Thermoplastics Co. v. Faytex Corp., 970 F.2d 834, 838 n.2 (Fed. Cir. 1992) (“A decision
that fails to consider Supreme Court precedent does not control if the court determines that the
prior panel would have reached a different conclusion if it had considered controlling
precedent.”); Tucker v. Phyfer, 819 F.2d 1030, 1035 n.7 (11th Cir. 1987) (holding that the court
may disregard prior panel decision that failed to reference previous Supreme Court opinions and
stating that “we do not view ourselves as violating the prior panel rule; rather, we are simply
discharging our duty to follow clearly controlling Supreme Court precedent”); Wilson v. Taylor,
658 F.2d 1021, 1035 (5th Cir. Unit B 1981) (in the “unusual and delicate situation” where a prior
circuit case did not consider the impact of intervening Supreme Court precedent, the court must
apply the Supreme Court decision, not the later-issued circuit case).
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It is also true that the intervening Supreme Court authority need not be precisely on point,
if the legal reasoning is directly applicable. See, e.g., Troy v. Samson Mfg. Corp., 758 F.3d 1322,
1326 (Fed. Cir. 2014) (holding that issues decided by an intervening Supreme Court case “need
not be identical to be controlling”) (and cases cited therein)); Sierra Club v. Korleski, 681 F.3d
342, 351-52 (6th Cir. 2012) (choosing “not to extend” the holding of a prior Sixth Circuit case
comparing a Clean Air Act provision to a different but related CAA provision because the
reasoning of the prior Sixth Circuit case (1) was “dubious at best,” (2) was “irreconcilable with
the Supreme Court’s later construction of a nearly identical provision” addressed in an
intervening Supreme Court case, and (3) “came during an era whose conception of the state-
federal relationship has been superannuated by” later Supreme Court decisions); Barr v. Lafon,
538 F.3d 554, 571 (6th Cir. 2008) (noting that subsequent panel properly rejected prior panel
decision in light of intervening Supreme Court authority applied to an analogous setting); Primax
Recoveries, Inc. v. Gunter, 433 F.3d 515, 518-19 (6th Cir. 2006) (intervening Supreme Court
decisions interpreting Federal Rules of Bankruptcy and Criminal Procedure addressing term
“jurisdiction” caused this court to revisit whether it lacked jurisdiction over an ERISA claim);
Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc) (“We hold that the issues decided
by the higher court need not be identical to be controlling. Rather, the relevant court of last
resort must have undercut the theory or reasoning underlying the prior circuit precedent in such a
way that the cases are clearly irreconcilable.”); Troy, 758 F.3d at 1326 (stating that lower courts
are “bound not only by the holdings of higher courts’ decisions but also by their ‘mode of
analysis’” (citing Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175,
1177 (1989)).
Plaintiffs and Amici make compelling arguments for abrogating the Coulter cap. First,
they claim that Coulter is inconsistent with the reasoning in Jean. Jean addressed a similar issue
under the Equal Access to Justice Act (EAJA), a fee-shifting statute similar to § 1988. In Jean,
the Supreme Court rejected the notion that recovering fees for the fees stage of litigation should
be subject to a different standard than recovering for the merits stage. Jean, 496 U.S. at 160-62.
The government in Jean argued that the prevailing plaintiffs in an EAJA case must make a
separate showing that the government’s position in opposing the fee award was not
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“substantially justified,” even though the plaintiffs had already shown that the government’s
position on the merits was not substantially justified (as required by the EAJA). Id. The Jean
Court rejected the argument that the two stages of litigation should be treated separately for
purposes of EAJA, stating: “The single finding that the Government’s position lacks substantial
justification, like the determination that a claimant is a ‘prevailing party,’ . . . operates as a one-
time threshold for fee eligibility.” Id. at 160. “While the parties’ postures on individual matters
may be more or less justified, the EAJA—like other fee-shifting statutes—favors treating a case
as an inclusive whole, rather than as atomized line-items.” Id. at 161–62.
The Jean Court looked to the Hensley reasonableness formulation for determining the
amount of fees for fees, stating that “once a private litigant has met the multiple conditions for
eligibility for EAJA fees,12 the district court’s task of determining what fee is reasonable is
essentially the same as that described in Hensley.” Id. at 161; see also id. at 163 n.10
(“[Hensley] requires the district court to consider the relationship between the amount of the fee
awarded and the results obtained . . . .”). The Jean Court dismissed the government’s argument
that allowing an automatic award of fees for fees would encourage exorbitant fee requests,
generate needless litigation, and unduly burden the federal fisc, stating that the district court can
“recognize and discount” improper claims. Id. at 162-63. The Jean Court also noted that, under
Hensley, which requires consideration of whether fees have been incurred relative to successful
or unsuccessful claims in a case, “fees for fee litigation should be excluded to the extent that the
applicant ultimately fails to prevail in such litigation.” Id. at 163 n.10.
Jean’s reliance on Hensley’s reasonableness formulation at the fees for fees stage in AJA
litigation preordains the conclusion that the reasonableness formulation applies to the fees on
fees stage of § 1988 too. To put it another way, if EAJA, which is just “like other fee-shifting
statutes,” id. at 161, looks to Hensley, then this court can decide that the Hensley reasonableness
formulation likewise applies to the fees stage of § 1988 litigation. As Jean highlights, a
12
To be eligible for a fee award under the EAJA, (1) the claimant must be a “prevailing party”; (2) the
Government’s position must be “substantially justified”; (3) there must be no “special circumstances make an award
unjust”; and (4) any fee application must be submitted to the court within 30 days of final judgment in the action and
be supported by an itemized statement. 28 U.S.C. § 2412(d)(1)(A), (B).
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presumptive cap lacks textual support and is not needed to ward off exorbitant fees and
protracted litigation. The district court can correct any abuses at the fees for fees stage under the
“reasonableness” standard.
The presumptive cap mostly takes away the discretion afforded to the district court in the
statute. See 42 U.S.C. § 1988(b) (“[T]he court, in its discretion, may allow the prevailing party,
other than the United States, a reasonable attorney’s fee as part of the costs . . . .”).13 Congress
knows how to set caps on fee applications and has done so in other contexts, yet it did not do so
in § 1988. See, e.g., Baker Botts LLP v. ASARCO LLC, 135 S. Ct. 2158, 2165 (2015)
(concluding that a fee-shifting provision in the Bankruptcy Code does not allow for “[t]ime spent
litigating a fee application”); In re Meese, 907 F.2d 1192, 1203 (D.C. Cir. 1990) (holding that the
Independent Counsel Reauthorization Act does not permit fees claimed for the preparation of a
fee application); cf. Kaseman v. Dist. of Columbia, 444 F.3d 637,643 (D.C. Cir. 2006) (holding
that fee-cap provision in the Individuals with Disabilities Education Act applies to both merits
time before administrative agency and fees for fees time in court). Section 1988 does not contain
a similar limitation. See Jama v. ICE, 543 U.S. 335, 341 (2005) (“We do not lightly assume that
Congress has omitted from its adopted text requirements that it nonetheless intends to apply
. . . .”).
The legislative history further suggests that Congress envisioned a “reasonable”
attorney’s fees for fees award. See S. Rep. No. 94-1011, at 2 (1976) (stating that “[i]f private
citizens are to be able to assert their civil rights, and if those who violate the Nation’s
fundamental laws are not to proceed with impunity, then citizens must have the opportunity to
recover what it costs them to vindicate these rights in court”); Hensley, 461 U.S. at 429 (stating
that § 1988 ensures “effective access to judicial process” for civil rights plaintiffs.) (quoting
H.R. Rep. No. 94-1558, at 1 (1976)). Indeed, in acknowledging that fees for fees are recoverable
under § 1988, this court observed that “[i]f a successful party in a civil rights suit is awarded
attorney’s fees under the Act and he cannot secure attorney’s fees for legal services needed to
13
To be sure, Coulter created an exception for “unusual circumstances” to justify a departure from the
presumptive cap. However, the plain language of the statute gives the district court that discretion.
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defend the award on appeal, the underlying Congressional purpose for the Act would be
frustrated.” Weisenberger v. Huecker, 593 F.2d 49, 54 (6th Cir. 1979). The Senate Report for
amendment of § 1988 cited with approval Stanford Daily v. Zurcher, 64 F.R.D. 680 (N.D. Cal.
1974), aff’d, 550 F.2d 464 (9th Cir. 1977), rev’d on other grounds, 436 U.S. 547 (1978). See S.
Rep. No. 94-1011, at 6, reprinted in U.S. C.C.A.N. 5908, 5913; Stanford noted the “federal court
decisions which make no distinction, in calculating fees, between attorney hours spent on the
merits and on the issue of counsel fees” and held that denying fees on fees awards “would allow
parties to dilute the value of a fees award by forcing attorneys into extensive, uncompensated
litigation in order to gain any fees.” Stanford, 64 F.R.D. at 683-84; see also Gagne v. Maher,
594 F.2d 336, 344 (2d Cir. 1979) (legislative history “impliedly” supported fully compensatory
fees for fee awards because Senate Report cited Stanford); Johnson v. Mississippi, 606 F.2d 635,
638 (5th Cir. 1979) (same).
Plaintiffs and Amici also attack the reasoning of Coulter itself. Coulter justified the
presumptive cap on the following grounds:
Although time spent in preparing, presenting, and trying attorney fee
applications is compensable; some guidelines and limitations must be placed on
the size of these fees. Otherwise the prospect of large fees later on may
discourage early settlement of cases by rewarding protracted litigation of both the
civil rights case and the attorney fee case.
The cases from this and other circuits uniformly hold that a lawyer should
receive a fee for preparing and successfully litigating the attorney fee case after
the original case is over, although in the private market place, lawyers do not
usually charge, and clients do not usually pay, for the time it takes lawyers to
calculate their fees. See cases collected and discussed in In re Nucorp Energy,
Inc., 764 F.2d 655, 660 (9th Cir. 1985). The legislative intent behind attorney fee
statutes, however, was to encourage lawyers to bring successful civil rights cases,
not successful attorney fee cases. The attorney fee case is not the case Congress
expressed its intent to encourage; and in order to be included, it must ride
piggyback on the civil rights case.
Coulter, 805 F.2d at 151.
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But the only case cited, In re Nucorp Energy, Inc., 764 F.2d 655 (9th Cir. 1985), actually
supports fully compensatory awards of fees for fees, and it cited cases from other circuits doing
the same. Nucorp adopted the reasoning of the Third Circuit:
If an attorney is required to expend time litigating his fee claim, yet may not be
compensated for that time, the attorney’s effective rate for all the hours expended
on the case will be correspondingly decreased. Recognizing this fact, attorneys
may become wary about taking Title VII cases, civil rights cases, or other cases
for which attorneys’ fees are statutorily authorized. Such a result would not
comport with the purpose behind most statutory fee authorizations, viz, the
encouragement of attorneys to represent indigent clients and to act as private
attorneys general in vindicating congressional policies. Indeed, courts have
consistently held that attorneys may be awarded, under statutory fee
authorizations, compensation for the expenses of and time spent litigating the
issue of a reasonable fee-i.e. for time spent on the fee application and successful
fee appeals.
Nucorp, 764 F.2d at 660-61 (quoting Prandini v. Nat’l Tea Co., 585 F.2d 47, 53 (3d Cir. 1978)).
In fact, Prandini cautioned in general against reducing fees by an arbitrary figure: “district
courts, in awarding attorneys’ fees, may not reduce an award by a particular percentage or
amount (albeit for justifiable reasons) in an arbitrary or indiscriminate fashion[,] . . . [but] must
analyze the circumstance requiring the reduction and its relation to the fee, and it must make
specific findings to support its action.” Prandini, 585 F.2d at 52.
Moreover, the policy goals for the cap on fee awards identified in Coulter lack a logical
connection to the rule itself. Coulter justified the 3% presumptive cap as serving several goals,
including (1) to model the private marketplace, (2) to ensure proportionality, (3) to encourage
settlement, and (4) to honor the intent of § 1988. See Coulter, 805 F.2d at 151.
First, preparing and supporting a fee application is more strenuous than invoicing an
hourly client in the marketplace because much more detail and proof is required under § 1988.
Unlike privately paid attorneys, civil rights attorneys must support their bills with expert
affidavits, distinguish between time spent on successful and unsuccessful claims, defend their
billing rates, and compare them to similar attorneys. Such documentation is required for even
the most basic fee petition if counsel are to meet their burden of proof.
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Second, most of the mandatory work required to support a fee petition is entirely
independent of the amount of work required to succeed on the merits of a civil rights case, and in
any event, Coulter does not explain why the proportion should be 3%. By not compensating for
work seeking fees, the practical effect is to diminish the value of attorneys’ fees awarded for the
entire case, including the work on the merits.
Third, the Coulter cap encourages plaintiffs to accept unjustifiably low settlement terms
to avoid a lengthy fee dispute resulting in a less-than-compensatory fee award. Conversely, it
creates an incentive for defendants (typically governmental agencies) to push the fee litigation
beyond the 3% cap and use the prospect of numerous hours of uncompensated time as leverage
for a lowball settlement proposal. See, e.g., ABC v. Brunner, No. 1:04-cv-750, 2008 U.S. Dist.
LEXIS 119364, at *18-19 (S.D. Ohio Sept. 30, 2008) (refusing to impose 3% cap for litigating
attorneys’ fees award where the Secretary’s “impenitent strategy resulted in the voluminous
number of hours spent on this case” and finding that the plaintiffs’ counsel would “not be
punished for responding to such litigation strategy with the fervor and diligence necessary to
ethically advocate”).
Fourth, and most importantly, as already stated, the Coulter rule is inconsistent with the
purpose of § 1988’s fee-shifting provision, which “is to ensure ‘effective access to the judicial
process’ for persons with civil rights grievances.” Hensley, 461 U.S. at 429 (quoting H.R. Rep.
No. 94–1558, at 1 (1976)). In Weisenberger we recognized that diluting the overall fee award by
failing to provide fully compensatory fees for fees undermines the congressional intent behind a
fee-shifting statute, which is “to encourage the private prosecution of civil rights suits through
the transfer of the costs of litigation to those who infringe upon basic civil rights.”
Weisenberger, 593 F.2d at 53-54.
Recently, in related litigation, Judge Moore “question[ed] the continued vitality of the
three-percent rule,” perceiving “no justification in the statute or legislative history for divesting
the district courts of their discretion to determine” fees for fee awards. NEOCH, 695 F.3d at 577
(Moore, J., concurring) (acknowledging that Coulter was binding Sixth Circuit precedent). No
other circuit has adopted a bright-line cap on fees for fees compensation. See id. For example,
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the Eleventh Circuit has held that fees for fees are “fully compensable.” See Martin v. Univ. of
S. Ala., 911 F.2d 604, 610 (11th Cir. 1990); see also Hernandez v. George, 793 F.2d 264, 269
(10th Cir. 1986) (“Compensating attorneys for work in resolving the fee issue furthers the
purpose behind the fee authorization in § 1988 which is to encourage attorneys to represent
indigent clients and to act as private attorneys general in vindicating federal civil rights policies.”
(citing Prandini, 585 F.2d 47)); Gagne, 594 F.2d at 344 (adopting Prandini view) (and cases
cited therein)).
In light of Jean, we abrogate the Coulter rule that limits the hours allowed for preparing
and litigating the attorney fee case to 3% of the hours in the main case when the issue is
submitted on the papers without a trial and to 5% of the hours in the main case after a trial.
Coulter is otherwise unaffected. Given this conclusion, it is necessary for us to remand to the
district court to determine reasonable attorneys’ fees for the hours expended by Plaintiffs in
seeking their fee award.
VII. CONCLUSION
As to the appeal, the judgment of the district court is AFFIRMED as to the hours
awarded, is VACATED as to the hourly rates of the Altshuler Berzon attorneys, and
REMANDED for detailed findings consistent with this opinion. As to the cross-appeal, Coulter
is abrogated to the extent that it holds that fees for seeking fees are limited to 3% and 5% of the
hours in the merit award, and the district court’s award of fees for fees is VACATED and
REMANDED for findings consistent with this holding.