Binta B. v. Gordon

Decision Date20 March 2013
Docket Number12–5532.,Nos. 10–6005,s. 10–6005
Citation710 F.3d 608
PartiesBINTA B., by her next friend S.A.; Aiden L. and Nakia L., by their next friend S.L.; Sarai R. and Amber R., by their next friend T.R.; Gunnar U., by his next friend M.U., Plaintiffs–Appellees, v. Darin GORDON, in his official capacity as Deputy Commissioner and Director of the Bureau of TennCare; Mark Emkes, in his official capacity as Commissioner of the Tennessee Department of Finance and Administration, Defendants–Appellants.
CourtU.S. Court of Appeals — Sixth Circuit


ARGUED:Michael W. Kirk, Cooper & Kirk, PLLC, Washington, D.C., for Appellants in 10–6005 and 12–5532. Christopher E. Coleman, Tennessee Justice Center, Nashville, Tennessee, for Appellees in 10–6005 and 12–5532. ON BRIEF:Michael W. Kirk, Charles Cooper, Derek L. Shaffer, Cooper & Kirk, PLLC, Washington, D.C., Linda A. Ross, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellants in 10–6005. Michael W. Kirk, Nicole J. Moss, Adam R.F. Gustafson, Cooper & Kirk, PLLC, Washington, D.C., Linda A. Ross, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellants in 12–5532. Christopher E. Coleman, Gordon Bonnyman, Jr., Tennessee Justice Center, Nashville, Tennessee, Kenneth W. Zeller, AARP Foundation Litigation, Washington, D.C., for Appellees in 10–6005. Christopher E. Coleman, Gordon Bonnyman, Jr., Tennessee Justice Center, Nashville, Tennessee, William H. Farmer, James W. White, Jones Hawkins & Farmer, PLC, Nashville, Tennessee, for Appellees in 12–5532.

Before: SILER, SUTTON, and McKEAGUE, Circuit Judges.


McKEAGUE, Circuit Judge.

Congress and the Supreme Court have made it abundantly clear that the aim of 42 U.S.C. § 1988 “is not for the purpose of aiding lawyers. The purpose of th[e] bill is to aid civil rights.” 122 Cong. Rec. 33,314 (Sept. 29, 1976) (remarks of Sen. Kennedy); Farrar v. Hobby, 506 U.S. 103, 115, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992) (“awards under § 1988 were never intended to produce windfalls to attorneys....”). Yet, Congress' allowance for fees under § 1988 occasionally is misunderstood and misused. The original petition for fees in this case, for example, yielded requests for dry cleaning bills, mini blinds, and health insurance. Though these requests were later dropped after being challenged, they exemplify the overcompensation some attorneys are apt to seek in litigation of this type—decades long class actions involving thousands of hours of work, numerous iterations of consent decrees, and years in-between spent enforcing and defending prior successes.

There are two sides to these attorney-fee debates, and we must honor both of them. On the one hand, § 1988 plays a critical role in “ensur[ing] that federal rights are adequately enforced,” and attorneys have every right to be compensated for any fees and expenses they reasonably incur. Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 130 S.Ct. 1662, 1671, 176 L.Ed.2d 494 (2010). On the other hand, these cases can all too easily become a way of life for the attorneys involved, and consequently over time it can become increasingly unclear, for both the attorneys and the courts, precisely what work falls within the ambit of § 1988. This case presents us with an opportunity to clarify the standards for when time spent defending or enforcing a prior consent decree is compensable under § 1988.

The State here challenges the district court's determination that plaintiffs were prevailing parties under § 1988, its conclusion that several categories of work performed by plaintiffs' counsel were “reasonablyexpended” on the litigation, and its 20% reduction in the fee award. For the reasons that follow, we affirm the award for work involving review of the Governor's proposal, we vacate the award for fees involving work in John B., Ware, and Daniels, and we vacate and remand the overall percentage reduction, and the award for work involving Rosen, the HAT injunction, opposing plaintiff-intervenors, work categorized as public relations, negotiating with legislators, negotiating with the Governor, and analyzing the soft-limits initiative.

A. History Leading to the Appeals in 10–6005 and 12–5532

This case has been ongoing for over thirty years. For purposes of these consolidated appeals, the relevant facts are as follows. In 1979, Pearl Bailey and Cluster Daniels filed a complaint under 42 U.S.C. § 1983 on behalf of present and future Medicaid recipients alleging that Tennessee's medicaid program violated the requirements of the Medicaid Act, 42 U.S.C. § 1396, et seq., and the Due Process Clause of the Fourteenth Amendment. In March of 1983, Donna Owens, Agnes Denton, Ollie Johnson, Gaynell Grier and Dorothy Cantrell were granted leave to intervene as plaintiffs. Later that year, plaintiffs' counsel notified the court and the state that Pearl Bailey, one of the two original plaintiffs, had died. In 1984, Nannie Breeden and Carolyn Fitts were granted leave to intervene as plaintiffs. On January 4, 1985, the district court certified a subclass under Fed. R. Civ. P. 23. That subclass was Tennessee Medicaid recipients “who have not been notified when claims for Medicaid payments ... have been denied, or have not been notified of the reasons for denial of payment, or have not been notified of their fair hearing rights.” App. 490. Thus, at the time the class was certified, Daniels, Grier, Cantrell, Owens, Denton, Johnson, Breeden, and Fitts were in the class and had all been named as class representatives.

Over the course of the next several decades, the parties attempted to resolve their disputes through various consent decrees and revisions to those decrees. The first decree was entered into in 1986, then another in 1992. In January 1994, Tennessee converted its traditional Medicaid program to a managed care program called TennCare. Under TennCare, the state contracts directly with private managed care contractors to provide healthcare to TennCare recipients. The contractors are required by contract to comply with previously mandated notice and hearing requirements.

In 1995, five class members filed motions to modify the 1992 consent decree alleging the TennCare program was being administered in a manner inconsistent with the 1992 decree and federal law. The caption on plaintiffs' motion stated it was being brought by “Cluster Daniels, ET AL., Plaintiffs, and C.J. by his next friend, C.S.; [and three other individuals identified with initials], as representative class members....” App. 192. The State opposed the substance of the motions with several affidavits. The captions on the State's affidavits similarly listed “C.J., by his next friend, C.S.,” and others, as “representative class members.” The affidavits argued that the bulk of the “named plaintiffs' ” grievances, including C.J.'s, had been resolved, but did not expressly contest C.J.'s role as a “representative class member.” App. 617–23, 659–62.

On May 15, 1996, the district court partially granted the motions filed by C.J. and the other named representatives and ordered the State to submit proposed modifications to the 1992 consent decree that would comport with the Medicaid Act and constitutional due process requirements. On August 26, 1996, the court entered an order approving the State's proposed modifications. The order's caption listed “C.J. by his next friend, C. S.” as a “representative class member[ ].” App. 510.

In 1998, class counsel notified the district court that plaintiffs Daniels and Breeden died. Thus, as of that date, as far as any of the parties were aware, the representative class members remaining in the litigation were Greer, Cantrell, Owens, Denton, Johnson, Fitts, and possibly C.J. and the other minors listed as representatives during the 1995–96 action.

The consent decree was again revised in 1999 and 2000. In March 2003, the parties entered negotiations to revise the 2000 consent decree, and to discuss three other ongoing class action lawsuits involving different aspects of TennCare's administration. On October 1, 2003, the district court finally approved and entered the Revised Consent Decree (Modified) in this case (2003 Consent Decree”). App. 353.1 According to the court, the 2003 Consent Decree “contain[ed] the strongest due process protections” yet. Grier v. Goetz, 402 F.Supp.2d 876, 937 (M.D.Tenn.2005).

The 2003 Consent Decree also stated that the State would continue to “have primary responsibility for monitoring and enforcing compliance” with the consent decree and “the regulations and laws incorporated herein.” However, it also set forth several monitoring functions for plaintiffs' counsel, including document inspection for “monitoring compliance with this order,” and “inspect [ing] the operation of any state agency” involved with implementation of the decree. App. 389–90. The 2003 Consent Decree also awarded plaintiffs attorney's fees as the prevailing parties under 42 U.S.C. § 1988. App. 391. Accordingly, in a later order, the district court awarded plaintiffs $628,123.47 in fees and expenses based on the parties' jointly agreed-upon resolution as to those fees and expenses.

A few months after entering the 2003 Consent Decree, the State announced plans to restructure TennCare in light of severe state budget problems. The State's proposal admitted that changes in the program may require revising the consent decrees in this and the other ongoing cases. These changes included eliminating non-Medicaid eligibility categories and disenrolling a large number of adults and children from the program should the State's requested proposal not be adopted. App. 808–09.2

Shortly after the state announced its proposal, the district court granted a motion allowing several other plaintiff-intervenors from the Rosen action to intervene in this case for limited purposes. The plaintiff-intervenors (all of whom were subject to disenrollment under the...

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