Parsons v. Ryan

          ORDER

          David K. Duncan United States Magistrate Judge

         Pending 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.

         The Stipulation

          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)

         Stipulation. 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.)

         This is 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.

         Hourly Rate

          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)

         Under 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 (9^th Cir. 2002).^[1]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.” Id.

         As 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.

         Fiscal 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).

         It 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)

         Application of Enhancement

         The 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 (9^th Cir. 2016) (noting absence of limitation means multiplier is acceptable).^[2]

         The parties do not dispute that analysis of an enhancement is governed by Kerr v. Screen Guild Extras, Inc., 526 F.2d 67, 70 (9^th 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 (9^th 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 appropriate.

         Unsurprisingly, 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.

         The Time And Labor Required

         Defendants 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.

         Defendants 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 ...