Orr v. Nelson

• Decision Date: 25 January 1995
• Docket Number: No. 4:CV94-3252.,4:CV94-3252.
• Citation: 874 F. Supp. 998
• Parties: G. William ORR, M.D., on behalf of himself and the Medicaid-eligible women seeking abortions he serves; and Womens Services, P.C., Plaintiffs, v. E. Benjamin NELSON, in his official capacity as Governor of the State of Nebraska; Donald Stenberg, in his official capacity as Attorney General of the State of Nebraska; and Mary Dean Harvey, in her official capacity as Director of the Nebraska Department of Social Services, Defendants.
• Court: U.S. District Court — District of Nebraska

874 F. Supp. 998

G. William ORR, M.D., on behalf of himself and the Medicaid-eligible women seeking abortions he serves; and Womens Services, P.C., Plaintiffs, v. E. Benjamin NELSON, in his official capacity as Governor of the State of Nebraska; Donald Stenberg, in his official capacity as Attorney General of the State of Nebraska; and Mary Dean Harvey, in her official capacity as Director of the Nebraska Department of Social Services, Defendants.

No. 4:CV94-3252.

United States District Court, D. Nebraska.

January 25, 1995.

Lawrence I. Batt, Batt & Associates, Omaha, NE, Simon Heller, New York City, for plaintiffs.

David T. Bydalek, Asst. Atty. Gen., Lincoln, NE, for defendants.

MEMORANDUM AND ORDER

KOPF, District Judge.

On November 4, 1994 (filing 19) I granted declaratory and injunctive relief in favor of Plaintiffs and against Defendants after I found that Nebraska's Medicaid regulations violated the Supremacy Clause of the Constitution because those regulations conflicted with federal law found in the Departments of Labor, Health and Human Services, and Education, and Related Agencies Appropriations Act, 1994, P.L. 103-112, § 509, 1993 U.S.C.C.A.N. 107 (Stat.) 1082, 1113 (October 21, 1993) (hereinafter "1994 Hyde Amendment".) The 1994 Hyde Amendment provided that: "None of the funds appropriated under this Act shall be expended for any abortion except when it is made known to the Federal entity or official to which funds are appropriated under this Act that such procedure is necessary to save the life of the mother or that the pregnancy is the result of an act of rape or incest." (emphasis added.)

I believed the Supremacy Clause was violated because Nebraska, despite the provisions of the 1994 Hyde Amendment, having accepted federal Medicaid monies, refused to use those monies to pay for abortions in the case of pregnancy caused by rape or incest. Virtually every case to consider the issue had concluded that the 1994 Hyde Amendment (and other similar amendments) when read in light of the remainder of Title XIX of the Social Security Act, 42 U.S.C. § 1396, et seq. (1994) constituted a mandatory directive to states, such as Nebraska, to spend federal Medicaid monies for abortions sought by otherwise eligible women who were pregnant as "the result of an act of rape or incest". (Filing 19 at 8.)

Now, Plaintiff's claiming to have prevailed under 42 U.S.C. § 1983 (1994), seek attorney fees pursuant to 42 U.S.C. § 1988(b) (1994) totalling nearly $10,000.00 (filing 26). I shall grant the Plaintiffs' motion in part and deny the motion in part, and award Plaintiffs' attorney fees (and associated expenses) in the sum of $5,456.08.¹

I.

A brief review of the procedural history of this case, followed by a brief review of the facts relevant to the attorney fee issue, is in order.

A.

Plaintiffs commenced this case claiming an entitlement to injunctive and declaratory relief pursuant to the Supremacy Clause of the Constitution, art. VI, cl. 2 and 42 U.S.C. § 1983. (Filing 1, Complaint ¶ 1.) Plaintiffs were represented by Lawrence I. Batt (Batt) an Omaha, Nebraska lawyer and Simon Heller (Heller) a New York lawyer. Batt and Heller filed the complaint on August 12, 1994. (Filing 1.)

Defendants answered the complaint on September 1, 1994. (Filing 5.) Plaintiffs moved for summary judgment on September 8, 1994. (Filing 7.) After I granted Defendants an extension of time within which to respond, Defendants responded to the motion for summary judgment on October 31, 1994. Judgment was entered for Plaintiffs on November 4, 1994. (Filings 19 & 20.)

Plaintiffs then sought an extension of time to file their application for attorney fees pursuant to Fed.R.Civ.P. 54(d)(2)(B). (Filing 21.) Plaintiffs were allowed until December 2, 1994 to file their application. (Filing 22.) On December 1, 1994, Defendants filed their notice of appeal. (Filing 23.) On December 2, 1994, Plaintiffs filed their application for attorney fees and expenses (Filing 26) supported by the affidavit of Batt (attachment to Filing 26) and the affidavit of Heller (attachment to Filing 26). Defendants submitted a brief in opposition which was received on December 19, 1994, and copies of various complaints filed in other similar cases. (Filing 31.) Plaintiffs were directed to submit, and did submit on December 30, 1994, a reply brief especially addressing the Defendants' argument that 42 U.S.C. § 1988 did not authorize an award of attorney fees because relief was predicated on the Supremacy Clause. (Filing 33.) Defendants sought and received authorization to submit a reply to Plaintiffs' reply brief and they submitted their additional brief on January 10, 1995 (Filing 36.) The matter is now ripe for resolution.

B.

Batt's affidavit establishes that: (1) he has been admitted to practice in the State of Nebraska since 1971; (2) he has significant litigation experience in cases of this kind in federal court; (3) his normal hourly rate charged to fee paying clients is $175.00; (4) his associate's normal hourly rate charged to fee paying clients is $105.00; (5) Batt agreed to represent Plaintiffs with the understanding that the fee, if any, awarded by this Court would be the extent of his compensation; (6) Batt, who kept contemporaneous time records, spent approximately 23.8 hours on this case; (7) Batt's associate, who kept contemporaneous time records, spent 1.1 hours on this case; (8) Batt expended $364.46 in out-of-pocket costs associated with this case as more particularly itemized in the affidavit.

Heller's affidavit establishes that: (1) he has been admitted to practice in the State of New York since 1986; (2) he has significant litigation experience in cases of this kind in federal court; (3) he has no normal hourly billing rate as he works for the Center for Reproductive Law & Policy (CRLP), but he has been awarded attorney fees at rates ranging from $95.00 per hour to $135.00 per hour in the past and he thus believes that an hourly rate of $175.00 per hour is reasonable in this case; (4) Heller, who kept contemporaneous time records, spent approximately 28.5 hours on this case; (5) Heller, on behalf of CRLP, expended in out-of-pocket costs associated with this case as more particularly itemized in the affidavit the sum of $293.62. Subsequently, Heller has indicated that he spent an additional 5.0 hours drafting the reply brief. Thus, Heller claims to have spent 33.5 hours working on this matter.

II.

There are essentially two legal issues presented by the submission of the parties: (1) whether Plaintiffs are entitled to attorney fees under 42 U.S.C. § 1988 inasmuch as they prevailed upon a Supremacy Clause claim, brought in part pursuant to 42 U.S.C. § 1983, regarding enforcement of the 1994 Hyde Amendment, and, (2) if so, what is the proper amount of such an award. I turn to a resolution of those issues next.

A.

As to the first question, Defendants argue that since the Supremacy Clause does not itself create federal rights, a point not disputed by Plaintiffs,² and since the 1994 Hyde Amendment does not impose an unambiguous obligation on the States to fund abortions, a point which is hotly disputed by Plaintiffs, there is no federal right enforceable under section 1983³ and thus no entitlement to attorney fees under section 1988(b)⁴.

Among other cases, the Defendants rely heavily upon the Supreme Court's recent decision in Suter v. Artist M., 503 U.S. 347, ___, 112 S.Ct. 1360, 1370, 118 L.Ed.2d 1 (1992). In that case the Court held that the "reasonable efforts" clause, contained in the Adoption Assistance and Child Welfare Act, which created a federal reimbursement program for expenses incurred by States in administering foster care and adoption services and required states to make reasonable efforts to keep a child in the family home before placing the child in a foster home, did not create a right, privilege or immunity enforceable under section 1983. The Court believed the "reasonable efforts" language was "plausibly read to impose only a rather generalized duty on the State, to be enforced not by private individuals, but by the Secretary. ..." Id. at ___, 112 S.Ct. at 1370.

With Suter and the rest of the cases cited by Defendants firmly in mind, I turn next to the task of determining whether the 1994 Hyde Amendment unambiguously created a federal right enforceable by Plaintiffs such that it is actionable under 42 U.S.C. § 1983, thereby justifying an award of attorney fees under 42 U.S.C. § 1988(b).

In a recent case from the United States Court of Appeals for the Eighth Circuit it was recognized that, while the Supreme Court in Suter "did not proceed analytically as it had in recent precedents", the Suter opinion nevertheless did not reverse other Supreme Court opinions on the question. Arkansas Medical Society, Inc., v. Reynolds, 6 F.3d 519, 524 (8th Cir.1993) (holding that a provision of the Medicaid law that required reimbursement rates to providers be sufficient to enlist enough providers so that care and services are available under the plan to the extent such care and services are available to the general population created a federal right enforceable under section 1983 by providers and Medicaid recipients.)

The Court of Appeals also stressed that the Suter opinion did not replace the Supreme Court's prior "framework with a different analytical model." Id. The Court of Appeals then held that it would follow the analytical procedure outlined in Golden State Transit Corp. v. City of Los Angeles, 493 U.S. at 106, 110 S.Ct. at 448 (hereinafter "Golden State"). Id. at 525. The Court of Appeals added, however, that it would bear in mind the considerations found especially important in Suter, to wit: the right must be unambiguously conferred before section 1983 comes into play and each statute must be examined on its own. Id.

As the Court of Appeals noted in Arkansas Medical Society, Inc., id. at 523, Golden State established a...