Kenny A. ex rel. Winn v. Perdue

Decision Date03 July 2008
Docket NumberNo. 06-15514.,No. 06-15874.,06-15514.,06-15874.
Citation532 F.3d 1209
PartiesKENNY A., by his next friend Linda Winn, Kara B., by her next friend Linda Pace, Maya C., by her next friend Linda Pace, Phelicia D., by her next friend Theresa Roth, Sabrina E., by her next friend Rebecca Silvey, Korrina E., by her next friend Rebecca Silvey, Tanya F., by her next friend Carol Huff, Priscilla G., by her next Friend Roslyn M. Satchel, Briana H., by her next friend Linda Pace, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Appellees-Cross-Appellants, v. Sonny PERDUE, in his official capacity as Governor of the State of Georgia, Department of Human Resources of the State of Georgia, James Martin, in his official capacity as Commissioner of the Department of Human Resources of the State of Georgia, Division of Family and Children Services, Fulton County, Beverly Jones, in her official capacity as Director of the Fulton County Department of Family and Children Services, DeKalb County DFCS, Wayne Drummond, in his official capacity as Director of the DeKalb County Department of Family and Children Services, Defendants-Appellants-Cross-Appellees, Fulton County, DeKalb County, Defendants.
CourtU.S. Court of Appeals — Eleventh Circuit

Mark H. Cohen, Troutman Sanders, Atlanta, GA, for Defendants-Appellants-Cross-Appellees.

Corey Fleming Hirokawa, Jeffrey O. Bramlett, Bondurant, Mixson & Elmore, Atlanta, GA, for Plaintiffs-Appellees-Cross-Appellants.

Appeals from the United States District Court for the Northern District of Georgia.

Before CARNES, WILSON and HILL, Circuit Judges.

CARNES, Circuit Judge:

When asked how much money would be enough for him, John D. Rockefeller reportedly said: "Just a little bit more."1 The attorneys for the plaintiff class in this case want more than just a little bit more. They want a lot more money than they would receive from multiplying the number of hours they worked on this case by the hourly rate they charge. And the district court gave them a lot more— $4,500,000 more—out of the pockets of the taxpayers of Georgia.

Not caught up in the district court's spirit of generosity with their money, the Georgia taxpayers (through their governor and other officials who are defendants) have appealed the attorneys' fees award because of that multi-million dollar enhancement and for other reasons. The plaintiffs' attorneys, convinced that the district court was not generous enough, have cross-appealed (through the class they represent), insisting that they deserve even more than the $10,500,000 total fees that the court awarded them.

I.

Kenny A. and eight other named plaintiffs in this lawsuit are foster children in the custody of the Georgia Department of Human Resources. Kenny A. ex rel. Winn v. Perdue, 454 F.Supp.2d 1260, 1266 (N.D.Ga.2006) (Kenny A. III). In June 2002, on behalf of a class of all foster children in Fulton and DeKalb Counties and a subclass of African American foster children, the plaintiffs sued the governor, DHR, its commissioner, Fulton and DeKalb Counties, each county's department of family and children services, and the director of each of those departments. Id. at 1266-67. The complaint alleged systemic deficiencies in the counties' foster care systems. Id. at 1267. These deficiencies, according to the complaint, included:

(1) assigning excessive numbers of cases to inadequately trained and poorly supervised caseworkers; (2) not developing a sufficient number of foster homes properly screened to ensure the plaintiff children's safety; (3) not identifying adult relatives who could care for the plaintiff children as an alternative to strangers or impersonal institutions; (4) failing to provide relevant information and support services to foster parents in order to prevent foster placements from being disrupted; (5) failing to develop administrative controls such as an information management system that ensures plaintiff children are expeditiously placed in a foster home matched to meet the children's specific needs; (6) failing to provide timely and appropriate permanency planning, including failing to provide services that would enable plaintiffs to achieve their permanency planning goals; (7) placing plaintiffs in dangerous, unsanitary, inappropriate shelters and other placements; (8) failing to provide appropriate and necessary mental health, medical, and education services to children in their custody; and (9) separating teenage mothers in foster care from their own children and separating siblings in foster care from each other without providing visitation.

Id.

The complaint asserted fifteen causes of action under federal and state law. Kenny A. ex rel. Winn v. Perdue, 218 F.R.D. 277, 283 (N.D.Ga.2003) (Kenny A. I). The federal law claims included alleged violations, brought under 42 U.S.C. § 1983, of the class members' Fourteenth Amendment rights to substantive and procedural due process and their First, Ninth, and Fourteenth Amendment rights to liberty, privacy, and association. Id. The complaint also alleged violations of the class members' statutory rights under the Adoption Assistance and Child Welfare Act of 1980, the Multiethnic Placement Act of 1994, as well as violations of the early and periodic screening, diagnosis, and treatment program of the Medicaid Act. Id. The state law claims asserted included violations of the class members' substantive due process and equal protection rights under the Georgia Constitution, violations of various Georgia statutes, and claims of nuisance, breach of contract, and inadequate and ineffective legal representation. Id. The complaint sought declaratory and injunctive relief, as well as attorneys' fees and expenses. Id. at 283 n. 1.

The district court denied the defendants' motions to dismiss and for summary judgment. Kenny A. III, 454 F.Supp.2d at 1269; Kenny A. ex rel. Winn v. Perdue, 356 F.Supp.2d 1353, 1355 (N.D.Ga.2005) (Kenny A. II); Kenny A. I, 218 F.R.D. at 305. It certified the class of all foster children in the Fulton and DeKalb County foster care systems, and the subgroup of African American foster children "who have had, or are subject to the risk of having, their adoption delayed or denied on the basis of their race or color," Kenny A. I, 218 F.R.D. at 305, and set the case for trial, Kenny A. III, 454 F.Supp.2d at 1268-69.

At the same time, the district court referred the case to mediation. Id. at 1269. As that court would later describe it, "over the next four months the parties attended eighteen separate mediation sessions where they spent more than 110 hours trying to hammer out a settlement agreement." Id. They were eventually successful. Id.

In May 2006 the district court gave final approval to the settlement between the plaintiff class and Fulton and DeKalb Counties; the parties agreed to an attorneys' fees award in that part of the case; the district court entered that award, and it has not been appealed. This appeal arises from the settlement involving the rest of the defendants, which was approved by the district court in October 2005. Id. The court summarized that settlement this way:

Its centerpiece is a series of thirty-one outcome measures that State Defendants have agreed to meet and sustain for at least three consecutive six-month reporting periods.

The outcome measures, many of them requiring phased-in results over a two-year period, seek to improve performance in the following areas: timely commencement and thorough completion of investigations of reported abuse or neglect; regular visits of foster children by case workers; approval and licensure of foster homes and other placements; the percentage of children who are the victims of substantiated maltreatment while in foster care; the percentage of children in foster homes that exceed their licensed capacity; the percentage of children who have experienced multiple moves while in foster care; and periodic judicial reviews of the safety and status of foster children.

In addition, the Consent Decree requires comprehensive and periodic delivery of medical, dental, and mental health services to foster children; a detailed process for improved goal-setting, case planning and periodic reviews of children's status while in foster care; limits on the placement of children in emergency shelters and group homes and institutions, and protections against overcrowding in foster homes; and the establishment of reimbursement rates to adequately compensate providers for caring for foster children.

Moreover, State Defendants commit to reduced caseloads for all case managers and supervisors; a fully implemented single statewide automated child welfare information system; and maintaining or establishing placements and related services identified in a "needs assessment" to be conducted by a neutral expert. The settlement also includes processes for the supervision of private contract agencies that provide homes and services for foster children; improvements in foster parent screening, licensing and training, as well as foster parent support and communication; improvements in case manager training; improvements in processes for addressing suspected abuse or neglect and suspected corporal punishment of children in foster care; and improvements in efforts to maximize available federal funding.

Finally, the settlement provides that two child welfare specialists will serve as the Court's independent accountability agents charged with the responsibility of measuring and reporting publicly on the State Defendants' compliance with these and other undertakings as specified in the Consent Decree.

Id. at 1289.

The 2005 settlement agreement further acknowledged that "Plaintiff Class is entitled to recover its expenses of litigation, including reasonable attorneys' fees and nontaxable costs, pursuant to 42 U.S.C. § 1988 and Fed.R.Civ.P. 23(h)." The agreement said that the parties would "attempt without court intervention to resolve the...

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