OPINION OF BREYER, J.
PERDUE V. KENNY A.
559 U. S. ____ (2010)
SUPREME COURT OF THE UNITED STATES
NO. 08-970
SONNY PERDUE, GOVERNOR OF GEORGIA, et al.,
PETITIONERS
v. KENNY A., by his next friend LINDA WINN,
et al.
on writ of certiorari to the united states court of
appeals for the eleventh circuit
[April 21, 2010]
Justice Breyer, with whom Justice
Stevens, Justice Ginsburg, and Justice Sotomayor join, concurring
in part and dissenting in part.
We granted certiorari in this
case to consider “whether the calculation of an attorney’s fee”
that is “based on the ‘lodestar,’ ”
ante, at 1
(opinion of the Court), can “
ever be enhanced based solely
on [the] quality of [the lawyers’] performance and [the] results
obtained,” Pet. for Cert. i (emphasis added). The Court answers
that question in the affirmative. See
ante, at 1 (“We have
stated in previous cases that such an increase is permitted in
extraordinary circumstances, and we reaffirm that rule”); see also
ante, p. ___ (Kennedy, J., concurring). As our prior
precedents make clear, the lodestar calculation “does not end the
[fee] inquiry” because there “remain other considerations that may
lead the district court to adjust the fee upward.”
Hensley
v.
Eckerhart,
461 U. S. 424, 434
(1983). For that reason, “[t]he lodestar method was never intended
to be conclusive in all circumstances.”
Ante, at 9.
Instead, as the Court today reaffirms, when “superior attorney
performance,”
ibid., leads to “exceptional success an
enhanced award may be justified,”
Hensley supra, at
435
; see also
Pennsylvania v.
Delaware Valley
Citizens’ Council for Clean Air,
478 U. S. 546, 565
(1986);
Blum v.
Stenson,
465 U. S. 886, 896–900
(1984). I agree with that conclusion.
Where the majority and I part ways is with
respect to a question that is not presented, but that the Court
obliquely, and in my view inappropriately, appears to consider
nonetheless—namely, whether the lower courts correctly determined
in this case that exceptional circumstances justify a
lodestar enhancement. See Parts IV–V,
ante; see also
ante, p. ___ (Kennedy, J., concurring). I would not
reach that issue, which lies beyond the narrow question that we
agreed to consider. See 556 U. S. __ (2009) (limiting review to the
first question presented); Pet. for Cert. i (stating question); see
also
Glover v.
United States,
531 U. S. 198, 205
(2001) (“As a general rule … we do not decide issues outside the
questions presented …”). Nor do I believe that this Court, which is
twice removed from the litigation underlying the fee determination,
is properly suited to resolve the fact-intensive inquiry that 42 U.
S. C. §1988 demands. But even were I to engage in that
inquiry, I would hold that the District Court did not abuse its
discretion in awarding an enhancement. And I would therefore affirm
the judgment of the Court of Appeals.
As the Court explains, the basic question that
must be resolved when considering an enhancement to the lodestar is
whether the lodestar calculation “adequately measure[s]” an
attorney’s “value,” as “demonstrated” by his performance “during
the litigation.”
Ante, at 10. While I understand the need
for answering that question through the application of standards, I
also believe that the answer inevitably involves an element of
judgment. Moreover, when reviewing a district court’s answer to
that question, an appellate court must inevitably give weight to
the fact that a district court is better situated to provide that
answer. For it is the district judge, and only the district judge,
who will have read all of the motions filed in the case, witnessed
the proceedings, and been able to evaluate the attorneys’ overall
performance in light of the objectives, context, legal difficulty,
and practical obstacles present in the case. In a word, the
district judge will have observed the attorney’s true “value,
as demonstrated …
during the litigation.”
Ibid. (emphasis added). By contrast, a court of appeals,
faced with a cold and perhaps lengthy record, will inevitably have
less time and opportunity to determine whether the lawyers have
done an exceptionally fine job. And this Court is yet less suited
to performing that inquiry. Accordingly, determining whether a fee
enhancement is warranted in a given case “is a matter that is
committed to the sound discretion of a trial judge,”
ante,
at 13, and the function of appellate courts is to review that
judge’s determination for an abuse of such discretion. See
Pierce v.
Underwood,
487 U. S. 552, 571
(1988); see also
General Elec. Co. v.
Joiner,
522 U. S. 136,
143 (1997) (“[D]eference … is the hallmark of abuse-of-discretion
review”).
This case well illustrates why our tiered and
functionally specialized judicial system places the task of
determining an attorney’s fee award primarily in the district
court’s hands. The plaintiffs’ lawyers spent eight years
investigating the underlying facts, developing the initial
complaint, conducting court proceedings, and working out final
relief. The District Court’s docket, with over 600 entries,
consists of more than 18,000 pages. Transcripts of hearings and
depositions, along with other documents, have produced a record
that fills 20 large boxes. Neither we, nor an appellate panel, can
easily read that entire record. Nor should we attempt to
second-guess a district judge who is aware of the many intangible
matters that the written page cannot reflect.
My own review of this expansive record cannot
possibly be exhaustive. But those portions of the record I have
reviewed lead me to conclude, like the Court of Appeals, that the
District Judge did not abuse his discretion when awarding an
enhanced fee. I reach this conclusion based on four
considerations.
First, the record indicates that the
lawyers’ objective in this case was unusually important and fully
consistent with the central objectives of the basic federal
civil-rights statute, 42 U. S. C. §1983. Moreover, the problem
the attorneys faced demanded an exceptionally high degree of skill
and effort. Specifically, these lawyers and their clients sought to
have the State of Georgia reform its entire foster-care system—a
system that much in the record describes as well below the level of
minimal constitutional acceptability. The record contains
investigative reports, mostly prepared by Georgia’s own Office of
the Child Advocate, which show, for example, the following:
The State’s foster-care system was unable to
provide essential medical and mental health services; children
consequently and unnecessarily suffered illness and life long
medical disabilities, such as permanent hearing loss, due to
failures on the part of the State to administer basic care and
antibiotics. See,
e.g., Doc. 3, Exh. 3C,
pp. 11–13.
Understaffing and improper staffing placed
children in the care of individuals with dangerous criminal
records; children were physically assaulted by the staff, locked
outside of the shelters at night as punishment, and abused in other
ways. See,
e.g., Doc. 50, pp. 32–36, 55; Doc. 3, Exh.
3A, pp. 2–6; Doc. 3, Exh. 2, pp. 4–5; Doc. 52, Exh. 1,
pp. 6, 12–15, 34.
The shelters themselves were “unsanitary and
dilapidated,” “unclean,” infested with rats, “overcrowded,” unsafe,
and “ ‘out of control.’ ” See,
e.g., Doc. 3,
Exh. 3A, at 1–2; Doc. 3, Exh. 3B, p. 2; Doc. 50, at
29.
Due to improper supervision and other
deficiencies at the shelters, 20% of the children abused drugs;
some also became victims of child prostitution. See
id.,
at 39; Doc. 3, Exh. 3A, at 3.
Systemic failures also caused vulnerable
children to suffer regular beatings and sexual abuse, including
rape, at the hands of more aggressive shelter residents. See,
e.g., Doc. 50, at 18–22, 54–55; Doc. 52, Exh. 1, at 7–10,
26; Doc. 3, Exh. 3B, at 3 (“[A child] was beaten so badly by eight
other [children] that he suffered severe internal bleeding”);
id., at 4 (describing violent sexual assault and
rape).
Not surprisingly, many children—upwards of 5
per day and over 750 per year—tried to escape these conditions;
others tried to commit suicide. See,
e.g., Doc. 50, at
27–28, 54; Doc. 52, Exh. 18, p. 4 (under seal) (at least 25%
of children run away from shelters); Doc. 52, Exh. 18E,
pp. 1–11, 18–19 (under seal) (daily logs); see also Doc. 50,
Exh. 1, at 37, 54 (describing suicide attempts) (all docket entries
above and hereinafter refer to No. 1:02–cv–1686 (ND Ga.) (case
below)).
The State’s Office of the Child Advocate,
whose reports provide much of the basis for the foregoing
description, concluded that the system was “operating in crisis
mode” and that any private operator who ran such a system “would
never be licensed to care for children.” Office of the Child
Advocate for the Protection of Children Ann. Rep. 10, 14 (2001),
Record, Doc. 3, Exh. 3C (hereinafter OCA 2001 Report); accord,
id., Exh. 3A, at 1. The advocate noted that neither her
investigative reports nor national news publicity (including a
television program that highlighted a 5-year-old foster child’s
death from beatings) had prompted corrective action by the State.
OCA 2001 Report 1, 14.
The advocate further stated that litigation
was necessary to force reform.
Id., at 14–15. And she
repeatedly asked the State to give her office the authority to
conduct that litigation. See Office of the Child Advocate Advisory
Committee, Ann. Effectiveness Rep. 4 (2002), online at
http://www.georgia.gov/vgn/images/portal/cit_1210/7/22/
84622967effectiveness2003.pdf (all Internet materials as visited
Apr. 16, 2010, and available in Clerk of Court’s case file) (“[F]or
the Office to be truly effective, it must possess the authority to
compel change [and] … to initiate litigation on behalf of children.
Such authority is widely considered by other states’ Child
Advocates as crucial to effecting meaningful change for children”);
Office of the Child Advocate Advisory Committee, Ann. Effectiveness
Rep. 13 (2003–2004) (same), online at http://gachildadvocate.org/
vgn/images/portal/cit_1210/48/16/84624761OCA_Effectiveness_Report2003_2004.doc;
Office of the Child Advocate Advisory Committee, Ann. Effectiveness
Rep. 11 (2004–2005) (same), online at
http://www.georgia.gov/vgn/images/portal/
cit_1210/31/23/102387685OCA%20Effectiveness%20Report
%202004-2005.doc. But the State did not grant the Child Advocate’s
office the litigating authority she sought. See 2000 Ga. Laws p.
245, as codified, Ga. Code Ann. §15–11–173 (2008).
The upshot is that the plaintiffs’ attorneys
did what the child advocate could not do: They initiated this
lawsuit. They thereby assumed the role of “a ‘private attorney
general’ ” by filling an enforcement void in the State’s own
legal system, a function “that Congress considered of the highest
priority,”
Newman v.
Piggie Park Enterprises,
Inc.,
390 U. S.
400, 402 (1968)
(per curiam), and “meant to promote in
enacting §1988,”
Texas State Teachers Assn. v.
Garland
Independent School Dist.,
489 U. S. 782, 793
(1989).
Second, the course of the lawsuit was
lengthy and arduous. The plaintiffs and their lawyers began with
factual investigations beyond those which the child advocate had
already conducted. See,
e.g., Record, Docs. 50–52
(partially under seal). They then filed suit. And the State met the
plaintiffs’ efforts with a host of complex procedural, as well as
substantive, objections. The State, for example, argued that the
law forbade the plaintiffs to investigate the shelters; on the eve
of a state-court decision that might have approved the
investigations, the State then removed the case to federal court;
the State then sought protective orders preventing the attorneys
from speaking to the shelters’ staff; and, after losing its
motions, the State delayed to the point where the District Court
“was forced to admonish [the] State Defendants for ‘relying on
technical legal objections to discovery requests in order to delay
and hinder the discovery process.’ ” 454 F. Supp. 2d.
1260, 1268 (ND Ga. 2006) (quoting Record, Doc. 145, p. 4). See also
Doc. 1; Doc. 3, pp. 9–10; Docs. 26, 28–29, 44, 60.
In the meantime, the State moved for
dismissal, basing the motion on complex legal doctrines such as
Younger abstention and the
Rooker-Feldman
doctrine, which the District Court found inapplicable. 218
F. R. D. 277, 284–290 (ND Ga. 2003). See
Younger
v.
Harris, 401 U. S. 37 (1971);
Rooker v.
Fidelity Trust Co., 263 U. S. 413 (1923),
and
District of Columbia Court of Appeals v.
Feldman, 460 U. S. 462 (1983).
The State also opposed the petitioners’ request to certify a class
of the 3,000 children in foster care, but the District Court again
rejected the State’s argument. 218 F. R. D.
, at
299–302. And, after that, the State filed a lengthy motion for
summary judgment, Record, Docs. 243–245, which plaintiffs’
attorneys opposed in thorough briefing supported by comprehensive
exhibits, see Docs. 254–258, 260. After losing that motion and
eventually agreeing to mediation, the State forced protracted
litigation as to who should be the mediator. See Docs. 363–364,
366, 369–370, 373, 376, 380. All told, in opposing the plaintiffs’
efforts to have the foster-care system reformed, the State spent
$2.4 million on outside counsel (who, because they charge the State
reduced rates, worked significantly more hours than that figure
alone indicates) and tapped its own law department for an
additional 5,200 hours of work. 454 F. Supp. 2d, at 1287.
Third, in the face of this
opposition, the results obtained by the plaintiffs’ attorneys
appear to have been exceptional. The 47-page consent decree
negotiated over the course of the mediation sets forth 31 specific
steps that the State will take in order to address the specific
deficiencies of the sort that I described above. See
id.,
at 1289; see also App. 92–207 (consent decree). And it establishes
a reporting and oversight mechanism that is backed up by the
District Court’s enforcement authority. See 454 F. Supp. 2d,
at 1289. As a result of the decree, the State agreed to
comprehensive reforms of its foster-care system, to the benefit of
children in many different communities. And informed observers have
described the decree as having brought about significant positive
results. See,
e.g., Record, Doc. 632, p. 4 (most
recent court-appointed overseers’ report) (“The State’s overall
performance … continues the trend of steady improvement …”);
id., at 4–10 (detailing substantial health, safety, and
welfare improvements); see also, Office of the Child Advocate Ann.
Report (2008), Letter from Tom C. Rawlings, Child Advocate, to
Sonny Perdue, Governor of Georgia (Jan. 16, 2009), online at
http://oca.georgia.gov/vgn/images/portal/cit_
1210/48/0/131408008OCA%202008%20Annual%20Report.pdf (“[W]e are
generally pleased with the direction of our state’s child welfare
system …”); cf. Weinstein & Weinstein, Before It’s Too
Late: Neuropsychological Consequences of Child Neglect and their
Implications for Law and Social Policy, 33 U. Mich. J. L.
Reform 561, 590–591 (2000) (describing in general the broad social
impact of dysfunctional child-welfare systems (quoting National
Institute of Health, Research on Child Neglect (1999), online at
http:// grants.nih.gov/grants/guide/rfa-files/RFA-OD-99-06.html)).
But see Record, Doc. 632, at 10–13 (noting areas in which Georgia’s
system still needs improvement).
Fourth and finally, the District
Judge, who supervised these proceedings, who saw the plaintiffs
amass, process, compile, and convincingly present vast amounts of
factual information, who witnessed their defeat of numerous state
procedural and substantive motions, and who was in a position to
evaluate the ultimate mediation effort, said:
1. the “mediation effort in this case went far beyond anything
that this Court has seen in any previous case,” 454 F. Supp.
2d, at 1282;
2. “based on its personal observation of plaintiffs’ counsel’s
performance throughout this litigation, the Court finds that …
counsel brought a higher degree of skill, commitment, dedication,
and professionalism to this litigation than the Court has seen
displayed by the attorneys in any other case during its 27 years on
the bench,”
id., at 1288–1290;
3. the Consent Decree “provided extraordinary benefits to the
plaintiff class … .”
Id., at 1282. “[T]he settlement
achieved by plaintiffs’ counsel is comprehensive in its scope and
detailed in its coverage… . After 58 years as a practicing
attorney and federal judge, the Court is unaware of any other case
in which a plaintiff class has achieved such a favorable result on
such a comprehensive scale,”
id., at 1289–1290.
Based on these observations and on its assessment
of the attorneys’ performance during the course of the litigation,
the District Court concluded that “the evidence establishes that
the quality of service rendered by class counsel . . . was far
superior to what consumers of legal services in the legal
marketplace … could reasonably expect to receive for the rates used
in the lodestar calculation.”
Id., at 1288.
On the basis of what I have read,
I believe that assessment was correct. I recognize that the
ordinary lodestar calculation yields a large fee award. But by my
assessment, the lodestar calculation in this case translates to an
average hourly fee per attorney of $249. See
id., at 1287
(lodestar calculation and attorney hours). (The majority’s
reference to an hourly fee of $866,
ante, at 12, refers to
the rate associated with the
single highest paid of the 17
attorneys under the
enhanced fee, not the
average
hourly rate under the
lodestar. The lay reader should also
bear in mind that a lawyer’s “fee” is substantially greater than
his “profit,” given that attorneys must sometimes cover
case-specific costs (which in this case exceeded $800,000, see 454
F. Supp. 2d, at 1291) and also must cover routine overhead
expenses, which typically consume 40% of their fees, see Altman
Weil Publications, Inc., Survey of Law Firm Economics 30 (2007
ed.)).
At $249 per hour, the lodestar would
compensate this group of attorneys—whom the District Court
described as extraordinary—at a rate
lower than the
average rate charged by attorneys practicing law in the
State of Georgia, where the average hourly rate is $268. See
id., at 89. Accordingly, even the majority would seem to
acknowledge that some form of an enhancement is appropriate in this
case. See
ante, at 10 (“[A]n enhancement may be
appropriate where the method used in determining the hourly rate
employed in the lodestar calculation does not adequately measure
the attorney’s true market value, as demonstrated in part during
the litigation”). Indeed, the fact that these exceptional results
were achieved in a case where “much of the work,”
ante, at
13, n. 7, was performed by relatively inexperienced attorneys
(who, accordingly, would be compensated by the lodestar “below the
market average,”
ibid.) is all the more reason to think
that their service rendered their outstanding performance worthy of
an enhancement. By comparison, the District Court’s enhanced
award—a special one-time adjustment unique to this exceptional
case—would compensate these attorneys, on this one occasion, at an
average hourly rate of $435, which is comparable to the rates
charged by the Nation’s leading law firms on average on every
occasion. See Firm-by-Firm Sampling of Billing Rates Nationwide,
National Law Journal, Dec. 11, 2006, p. S2 (listing 13 firms at
which average hourly rate is between $400 and $510); J. Barnett,
Certification Drag: The Opinion Puzzle and Other Transactional
Curiosities, 33 Iowa J. Corp. L. 95, 110, n. 58 (2007) (“These
numbers are probably an underestimate given that many of the
highest-billing national law firms decline to take part in the
National Law Journal Survey”). Thus, it would appear that the
enhanced award is wholly consistent with the purpose of §1988,
which was enacted to ensure that “counsel for prevailing parties
[are] paid as is traditional with attorneys compensated by a
fee-paying client.” S. Rep. No. 94–1011, p. 6 (1976); see
H. R. Rep. No. 94–1558, p. 9 (1976) (“[C]ivil rights
plaintiffs should not be singled out for different and less
favorable treatment”); see also
Blum, 465 U. S., at 893,
897.
In any event, the circumstances I have listed
likely make this a “rare” or “exceptional” case warranting an
enhanced fee award. And they certainly make clear that it was
neither unreasonable nor an abuse of discretion for the District
Court to reach that conclusion. Indeed, if the facts and
circumstances that I have described are even roughly correct, then
it is fair to ask: If this is not an exceptional case, what is?
* * *
My disagreement with the Court is
limited. As I stated at the outset, we are in complete agreement
with respect to the answer to the question presented: “[A]n
increase” to the lodestar “due to superior performance and results”
“is permitted in extraordinary circumstances.”
Ante, at 1.
Unlike Justice Thomas, I do not read the Court’s opinion to
“advance our attorney’s fees jurisprudence further along the
decisional arc” toward a point where enhancements are “virtually”
barred in all cases.
Ante, at 2 (concurring opinion). Our
prior cases make clear that enhancements are permitted in
“ ‘exceptional’ cases,”
Delaware Valley, 478 U. S.,
at 565, where the attorney achieves “exceptional success,”
Hensley, 461 U. S., at 435; see also
Blum, 465 U.
S., at 896–901. By definition, such exceptional circumstances occur
only rarely. See
ante, p. ___ (Kennedy, J.,
concurring). I do not see how the Court could “advance” our fee
enhancement jurisprudence so as to further discourage lodestar
enhancements without overruling the precedents I have just cited,
which the Court has not done. To the contrary, today the Court
“reaffirm[s]” those precedents, which allow enhancements for
exceptional performance.
Ante, at 1. And with respect to
that central holding we are unanimous.
Nor is my disagreement with the
Court absolute with respect to the proper resolution of the case
before us, for the Court does not purport to prohibit the District
Court from awarding an enhanced fee on remand if that court
provides more detailed reasoning supporting its decision.
Ante, at 12; cf. Tr. of Oral Arg. 47. But the majority and
I do disagree in this respect: I would not disturb the judgment
below. “A request for attorney’s fees should not result in a second
major litigation.”
Hensley, 461 U. S., at 437. Nor should
it lead to years of protracted appellate review. See
id.,
at 455–456 (Brennan, J., concurring in part and dissenting in
part). We did not grant certiorari in this case to consider the
fact-intensive dispute over whether this is, in fact, an
exceptional case that merits a lodestar enhancement. The District
Court has already resolved that question and the Court of Appeals
affirmed its judgment, having found no abuse of discretion. I would
have been content to resolve no more than the question presented.
But, even were I to follow the Court’s inclination to say more, I
would hold that the principles upon which we agree—including the
applicability of abuse-of-discretion review to a District Court’s
fee determination—require us to affirm the judgment below.
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