Kenny A. ex rel. Winn v. Perdue, No. 06-15514.

• Decision Date: 05 November 2008
• Docket Number: No. 06-15514.
• Citation: 547 F.3d 1319
• Parties: KENNY A., by his next friend Linda WINN, Kara B., by her next friend Linda Pace, et al., Plaintiffs-Appellees, v. Sonny PERDUE, in his official capacity as Governor of the State of Georgia, Department of Human Resources of the State of Georgia, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

547 F.3d 1319

KENNY A., by his next friend Linda WINN, Kara B., by her next friend Linda Pace, et al., Plaintiffs-Appellees, v. Sonny PERDUE, in his official capacity as Governor of the State of Georgia, Department of Human Resources of the State of Georgia, et al., Defendants-Appellants.

No. 06-15514.

United States Court of Appeals, Eleventh Circuit.

November 5, 2008.

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

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

Appeal from the United States District Court for the Northern District of Georgia (No. 02-01686-CV-MHS-1); Marvin H. Shoob, Judge.

ON PETITION FOR REHEARING EN BANC

Before EDMONDSON, Chief Judge, and TJOFLAT, ANDERSON, FIRCH, DUBINA, BLACK, CARNES, BARKETT, HULL, MARCUS, WILSON and PRYOR, Circuit Judges.

ORDER:

The Court having been polled at the request of one of the members of the Court and a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED.

WILSON, concurring in the denial of rehearing en banc:

I concur in the Court's denial of rehearing en banc only for the purpose of responding to the dissents that follow. I believe that existing precedent regarding the discretion afforded to district judges to calculate attorney's fee awards based on the longstanding lodestar analysis is clear, and not as confusing as the dissents attempt to make it out to be. Several decades of established Supreme Court precedent make it clear that district judges are vested with discretion to enhance a fee in accordance with a federal fee-shifting statute, in the "rare" and "exceptional" case, when there is specific evidence in the record to support an exceptional result and superior performance. See Pennsylvania v. Delaware Valley Citizens, Council for Clean Air ("Delaware Valley I"), 478 U.S. 546, 565, 106 S.Ct. 3088, 3098, 92 L.Ed.2d 439 (1986); Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984).

In Blum, the Supreme Court held that the "quality of representation" and the "results obtained" from the litigation could not serve as an independent basis for increasing the basic fee award only because the attorneys in Blum offered no evidence of an exceptional result or superior performance. Blum, 465 U.S. at 899, 104 S.Ct. at 1549. That is not the case here. In Blum, the Court indicated that the outcome would have been different had the plaintiff's attorneys "offer[ed] specific evidence" to demonstrate that an enhancement was necessary to reflect counsel's performance. Id. I find no language in Blum that can be interpreted to suggest that upward adjustments for excellent results or superior performance are categorically excluded. The Court stated that an upward adjustment may be justified in the "rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged" and resulted in "exceptional" success. Id.

Delaware Valley I presented the Supreme Court with a clear opportunity to overrule Blum, but it did not expressly do so. Rather, the Court repeatedly cited Blum with approval. See Delaware Valley I, 478 U.S. at 564, 106 S.Ct. at 3098 ("We further refined our views [regarding the proper manner in which to determine a `reasonable' attorney's fee] in Blum . . . f[inding] that [the lodestar] is presumed to be the reasonable fee . . . ."); id. at 568, 106 S.Ct. at 3100 (quoting Blum, 465 U.S. at 897, 104 S.Ct. at 1549) (leaving questions left open in Blum to be decided later). Additionally, the Supreme Court in Delaware Valley I echoed Blum's non-categorical language and conducted a case-specific analysis of the enhancement at issue. See id. at 566-68, 106 S.Ct. at 3099-3100.

Moreover, the Supreme Court affirmed in Delaware Valley I that "upward adjustments of the lodestar figure are still permissible . . . in certain `rare' and `exceptional' cases, supported by both `specific evidence' on the record and detailed findings by the lower courts." Id. at 565, 106 S.Ct. at 3098 (quoting Blum, 465 U.S. at 898-901, 104 S.Ct. at 1548-50). See The Supreme Court, 1986 Term: Leading Cases, 101 HARV. L. REV. 270, 293 (1987) (concluding that the Delaware Valley I Court "rejected the use of an enhancement based on superior attorney performance . . . absent specific evidence that the lodestar did not provide a reasonable award that reflected the quality of representation"). The dissents mischaracterize Delaware Valley I by ignoring this language, which precedes the Court's holding that "the lodestar figure includes most, if not all, of the relevant factors constituting a `reasonable' attorney's fee, and it is unnecessary to enhance the fee for superior performance in order to serve the statutory purpose of enabling plaintiffs to secure legal assistance." Id. at 566, 106 S.Ct. at 3098. Although the Court is clear that "the overall quality of performance ordinarily should not be used to adjust the lodestar," the Court leaves open the possibility of an extraordinary case. Id. at 566, 106 S.Ct. at 3099 (emphasis added). Reading Blum and Delaware Valley I together, the Supreme Court has consistently indicated that, in the "rare" and "exceptional" case, the district court has the discretion to grant an enhancement.

Importantly, there is no circuit split on this issue. The Second, Fourth, Fifth, Sixth, Eighth, Ninth, Tenth, and Eleventh Circuits — all of the circuits that have considered this issue — agree that a district court may provide an enhancement for exceptional performance. See Kenny A. v. Perdue, 532 F.3d 1209, 1242 (11th Cir. 2008) (affirming a lodestar enhancement); Geier v. Sundquist, 372 F.3d 784, 794-95 (6th Cir.2004) (concluding that Delaware Valley I permits enhancements based on quality of representation and results obtained in rare and exceptional cases); Van Gerwen v. Guarantee Mut. Life Co., 214 F.3d 1041, 1046 (9th Cir.2000) (stating that, as in Blum and Delaware Valley I, upward adjustment for quality of representation "is justified only in the rare case where there is specific evidence that the quality of service was superior in light of the hourly rates charged and that the success was exceptional"); Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir.1999) ("The lodestar may be adjusted based on several factors, including in particular the results obtained. . . .") (internal quotation marks and citation omitted); Forshee v. Waterloo Indus., Inc., 178 F.3d 527, 532 (8th Cir.1999) (stating that, to justify enhancement for outstanding service and results, the applicant "must establish that the quality of service rendered and the results obtained were superior to what one reasonably should expect in light of the hourly rates charged and the number of hours expended") (internal quotation marks and citation omitted); Hyatt v. Apfel, 195 F.3d 188, 192 (4th Cir.1999) (affirming enhancement "on account of the exceptional results obtained . . ."); Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1233 n. 8 (10th Cir. 1997) ("The lodestar figure may be adjusted to suit the particular circumstances of the case, especially where the degree of success achieved is exceptional."); and, Shipes v. Trinity Indus., 987 F.2d 311, 320 (5th Cir.1993) (noting that upward adjustments based on quality of representation and results obtained are proper where supported by specific evidence on record and detailed findings by lower courts).

The discretion to enhance an attorney's fee is a tool uniquely within the province of the district judge. The district judge has an unparalleled opportunity to observe the attorney's performance in a given case. Only the district judge can evaluate the attorney's performance from the day he or she files the complaint to the day the judge enters the order. Before arriving at its decision in this case, the district judge set forth detailed findings to explain why the lodestar figure did not fully reflect the quality of representation and the results achieved.

Judge Tjoflat's dissent mischaracterizes the district court's observations and findings in its published order as "testimony." These findings and observations are simply explanations for the enhancement, provided because Blum and Delaware Valley II require that an enhancement be justified. This is not a due process violation. The district judge explained that he was motivated to enhance by his "own substantial experience and familiarity with the prevailing rates in Atlanta, and the Court's observation of the stellar performance of plaintiffs' counsel throughout this long and difficult case," including the court's "58 years as a practicing attorney and federal judge." Kenny A. v. Perdue, 454 F.Supp.2d 1260, 1286, 1290 (2006). The district judge is in the best position to evaluate trial level advocacy, and therefore is in the best position to identify when that advocacy is exceptional. Although we review the district court's decision for an abuse of discretion, we should afford the district court the deference and discretion to which it is entitled.

We need not disturb our precedents in Norman v. Housing Auth. of Montgomery, NAACP v. Evergreen, and Kenny A. because they are consistent with existing Supreme Court precedent. Kenny A., 532 F.3d at 1242; Norman v. Housing Auth. of Montgomery, 836 F.2d 1292, 1302 (11th Cir.1988); NAACP v. Evergreen, 812 F.2d 1332, 1336-37 (11th Cir.1987) (per curiam). Our decisions are also consistent with every other Circuit that has considered whether, and to what extent, exceptional performance and results can be used to enhance an attorney's fee under the lodestar calculation. The Supreme Court has instructed that a district judge should only do so in an...