A recent law.com story, “Foster Care Case Tests High Court’s Attorney Fee Bonus Ruling” reports that children’s rights advocates, whose suit forced major reforms in Georgia’s foster care system, and their Atlanta counsel are seeking as much as $5.8 million in additional fees—on top of $6.7 million in fees based on hourly rates, and expenses, they already have been paid by the state.  This additional sum would put the U.S. Supreme Court’s new standard for awarding attorney fees to successful civil rights plaintiffs to the test.  The new standard decided last year in Perdue v. Kenny A. (pdf) provided that such fee bonuses be limited to cases involving “extraordinary circumstances.”

Counsel for the state’s foster children are seeking to apply the Supreme Court’s new standard to justify a fee enhancement award ranging from $3.1 million to $5.8 million.  The added fees, they assert, are what would be “minimally necessary to attract counsel competent to provide the extraordinary level of services required to litigate a case of this magnitude,” one of the Supreme Court’s new standards.  Plaintiffs’ counsel noted that they invested more than 30,000 hours and advanced $1.7 million of their own funds to litigate the case—a point echoed by their supporters in affidavits supporting the fee enhancements.

U.S. District Senior Judge Marvin H. Shoob, who presided over the foster care case, justified the fee enhancement in a 2006 order.  He said that the value of the services provided by the lawyers for the class of more than 3,000 children consigned to Georgia’s crisis-ridden foster care system—“in light of the result achieved, difficulties encountered, capital resources required, and protracted delay caused by the state defendants—‘far exceed what could reasonably be expected for the standard hourly rate' used to calculate the fees.

Nonetheless, any fee enhancement Shoob chooses to award in the next round of litigation will be subject to the Supreme Court’s definition of a “reasonable fee.”  The high court’s new rules for fee enhancements require that they not be based on factors implicitly covered by an hourly rate, such as the case’s novelty and complexity or the quality of an attorney’s performance.

NALFA News Blog first reported on the new Supreme Court fee enhancement standard in “U.S. Supreme Court Makes Lodestar Multiplier Less Likely”