United States District Court, D. Arizona
K. Duncan United States Magistrate Judge
before the Court is Plaintiffs' motion for attorneys'
fees and their motion for reconsideration. Because this is
the first time Plaintiffs have sought fees stemming from
enforcing the Stipulation, the Court will provide more detail
to explain the reasoning for its decision.
Background. In October 2014, the Parties entered
into a Stipulation resolving this matter and empowering the
Court to enforce it. (Doc. 1185) In April 2016, Plaintiffs
filed their first “Motion to Enforce.” (Docs.
1534-1548) Defendants moved to stay briefing on the Motion to
Enforce and requested a status conference. (Doc. 1549) The
Court conducted such a status conference on April 26, 2016.
(Doc. 1554) Since then, the Court has moved to monthly status
conferences that have grown from 30 minutes to an entire day.
During the last two years, Plaintiffs have filed several
other Motions to Enforce and have used the monthly status
conferences to prosecute enforcement claims for other aspects
of the Stipulation, such as the Stipulation's requirement
to offer Class Members a mammogram or colorectal screening.
Prosecution of these claims has resulted in findings of
substantial non-compliance, evidentiary hearings, Court tours
of prison units, and some have resulted in Court imposed
remedial measures. As it became clear that Defendants could
not readily comply with the Stipulation, the Court has heard
testimony on different aspects of compliance that are
inextricably intertwined with enforcement such as how the
CGAR data is collected and the Court has resolved a long
string of disputes about how to interpret various terms in
the Stipulation such as “90 days” and
“being seen.” (Doc. 1907)
Paragraphs 43 and 44 of the Stipulation discuss different
avenues for Plaintiffs' counsel to receive fees.
Paragraph 43 states in full:
In the event that Plaintiffs move to enforce any aspect of
this Stipulation and the Plaintiffs are the prevailing party
with respect to the dispute, the Defendants agree that they
will pay reasonable attorneys' fees and costs, including
expert costs, to be determined by the Court. The parties
agree that the hourly rate of attorneys' fees is governed
by 42 U.S.C. § 1997e(d).
(Doc. 1185 at 16) Paragraph 44 details an annual payment to
Plaintiffs' counsel for “work reasonably performed
or costs incurred to monitor or enforce the relief set forth
in this Stipulation” and “shall not apply . . .
to any work performed before the District Court to enforce or
defend this Stipulation.” (Id.)
Plaintiffs' first fee application and so the Court has
not yet delved into this corner of the Stipulation and the
parties disagree about what work is covered by Paragraph
43's statement awarding reasonable attorneys' fees
and costs “[i]n the event that Plaintiffs move to
enforce any aspect of the Stipulation and Plaintiffs are the
prevailing party with respect to the dispute.”
Defendants' central argument against Plaintiffs' fee
application is that Plaintiffs are only entitled to fees if
they prevailed “with respect to a specific dispute to
enforce the Stipulation.” (Doc. 2402 at 25) The Court
concludes that this is an inappropriately narrow
interpretation of the Stipulation. All of these various
activities described above are driven by Plaintiffs'
attempts to enforce the Stipulation. All of these matters are
before the Court because Defendants have not satisfied their
obligations under the Stipulation thereby requiring
Plaintiffs to move to enforce it. Hence, all are covered by
Paragraph 43 states that Plaintiffs' hourly rate
“is governed by 42 U.S.C. § 1997e(d).” The
parties disagree about what dollar amount this translates
into. Plaintiffs argue that they are entitled to the Judicial
Conference rate, a dollar amount proposed by the
Judiciary's budget. Defendants argue that this statutory
cite is tied to the hourly rate set by the Administrative
Office of the Court to compensate CJA-appointed lawyers.
(Doc. 2402, 2433)
Ninth Circuit precedent, even when the “approved rate
had not been implemented, ” hourly rates under Section
1997e(d) are not related “to the amount actually paid
to CJA counsel.” Webb v. Ada County, 285 F.3d
829, 839 (9th Cir. 2002).Thus, the Circuit concluded that
“Section 1997e(d)(3) makes no distinction between the
amount authorized by the Judicial Conference and the amount
actually appropriated by Congress to compensate
court-appointed counsel in criminal proceedings.”
relevant here, Section 1997e(d)(3) states that “No
award of attorney's fees in an action described in
paragraph (1) shall be based on an hourly rate greater than
150 percent of the hourly rate established under section
3006A of Title 18 for payment of court-appointed
counsel.” The Judicial Conference sets this rate and it
is currently $146/hour. (Doc. 2044-1 at 45). Accordingly, the
Court concludes that the Stipulation provides Plaintiffs an
hourly rate of $219/hour for fiscal year 2017.
year 2017 covered the time period from October 1, 2016 to
September 30, 2017. Plaintiffs argue that they are entitled
to the FY17 rate for all of their work because Defendants did
not engage with their attempts to negotiate a fee payment. As
support for this argument, Plaintiffs' counsel avowed
that he attempted to negotiate with Defendants for fees
incurred from October 2015 to December 2016 to no avail.
(Doc. 2278 at ¶10) However, there is no explanation for
why Plaintiffs waited until they had incurred 15 months of
fees or what happened between January 2017 (when the fees
through December 2016 were, presumably, known) and September
2017 (when the fee application was filed).
appears that the delay in filing the fee application was the
Plaintiffs own doing and so they are not entitled to
retrospective application of the higher rate. At the
Court's direction, Plaintiffs have submitted their hours
based on fiscal years and the Judicial Conference Rate for
Fiscal year 2016. (Doc. 2721)
Stipulation contains no mention of an enhancement or
multiplier and the Court understands that silence to mean
that it is free to evaluate the propriety of such an
enhancement. See, e.g., Kelly v. Wengler,
822 F.3d 1085, 1100 (9th Cir. 2016) (noting
absence of limitation means multiplier is
parties do not dispute that analysis of an enhancement is
governed by Kerr v. Screen Guild Extras, Inc., 526
F.2d 67, 70 (9th Cir. 1975), as modified by
City of Burlington v. Dague, 505 U.S. 557 (1992).
See Jordan v. Gardner, 986 F.2d 1521, 1531, n.10
(9th Cir. 1993). When the Court calculates a
lodestar amount and then evaluates an enhancement, these
factors are evaluated in either the lodestar analysis or the
enhancement analysis. Because the Stipulation set the hourly
rate, there is no true lodestar analysis here. Accordingly,
the Court will evaluate the applicability of all the
Kerr factors to determine whether an enhancement is
Plaintiffs argue they meet all of them and Defendants argue
Plaintiffs meet none of them. As detailed below, the Court
concludes Plaintiffs satisfy the Kerr factors.
Time And Labor Required
argue that Plaintiffs should not be compensated for
“litigating claims that have nothing to do with the
enforcement of the Stipulation.” (Doc. 2403 at 19) The
Court did not disagree and ordered Plaintiffs to refile their
fee request without the time spent litigating several
enumerated and unrelated topics.
further argue that claims of retaliation and expert review of
records should not be compensable. The Court concludes that
this is an overly narrow understanding of what constitutes
enforcement of the Stipulation. As the Court has repeatedly
stated, claims of retaliation strike at the heart of the
Court's ability to enforce the Stipulation. (Doc. 2223 at
5) Moreover, the CGAR data-which forms the foundation of
enforcement-is generated and reviewed by people with medical
training who review individual ...