In a lengthy opinion, Binta B. v. Gordon, the Sixth Circuit yesterday reversed in large measure a $2.5 million attorney fee award in a Section 1988 consent decree case. The Sixth Circuit noted that the case had spanned nearly 30 years, and in many respects had taken on a life of its own. The original attorney fee application in the case included “requests for dry cleaning bills, mini blinds, and health insurance.” Although the Court emphasized the role of Section 1988 in ensuring the enforcement of federal rights, it also pointed out that “these cases can all too easily become a way of life for the attorneys involved.”
One of the interesting issues that arose from this case was that the original named class representatives either died or moved out of the state by 2005, leaving the class without any named representative who was both alive and living in the state between 2005-2009. As a result, the state first challenged the fee award on the premise that there was not prevailing party because there simply was no party. However, the state did not realize this fact until late in the litigation and in many respects failed to preserve it. The Sixth Circuit noted that a class representative can still represent the class “even if the representative’s personal claims have been moot, at least until such time that there is a determination that the representative is no longer adequate.” This situation, of course, begs the question of what a client was actually directing the litigation, a point that the Sixth Circuit does not expressly mention but averts to with its references to litigation taking on a life of its own.
Another interesting aspect of the case concerns the district court’s departure from the lodestar calculation (for those who do Section 1988 litigation, the balance of the Court’s opinion will be of particular interest to you). The state did not in particular challenge either the number of hours or the hourly billing rate, but it did urge the district court to grant a downward departure based on the limited success attained by the plaintiffs. The district court obliged, but only to a certain extent, reducing the overall fee award by 20%. Although the Sixth Circuit recognized that a judge may have a fair amount of latitude in selecting a percentage for reduction, the Court emphasized that the district court must specifically explain and support its rationale for the reduction. In this case, the district court’s brief discussion of the 20% reduction was insufficient in the Sixth Circuit’s eyes to demonstrate why the court picked 20% as opposed to a different percentage. As a result, the Sixth Circuit vacated the reduction and instructed the court to reassess its calculations on remand.