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Category: Practice Area: Civil Rights / Public Interest

Seventh Circuit Upholds Attorney Fee Win in FMLA Action

August 25, 2022

A recent Law 360 story by Caleb Drickey, “7th Circ. Upholds Teacher’s Win In FMLA Suit” reports that the Seventh Circuit upheld a pair of lower courts' decisions to declare that a Wisconsin governmental entity violated the Family and Medical Leave Act by de facto demoting a concussed teacher, and to grant her attorney fees for her bench trial victory.  In a published opinion, a three-judge panel ruled that the lower court was within its authority to issue a damages-free declaration that the Cooperative Educational Service Agency 5 violated the FMLA by taking away teacher Sarah Simon's work responsibilities after she returned from medical leave. The panel further held that the law mandated the payment of attorney fees in the case of a judgment in favor of workers.

"If this case involved an accomplished neurosurgeon returning from leave to a position that required only tracking the hospital's inventory, we doubt that anyone would question whether the surgeon suffered prejudice," U.S. Circuit Judge Thomas Kirsch said on behalf of the panel. "Simon … suffered harm for which the FMLA provides a remedy."

The opinion stems from the Cooperative's retraction of Simon's job responsibilities after she returned to work in the wake of a workplace concussion.  Although the Cooperative, which provides staff and equipment to 35 school districts in the state, maintained Simon's previous salary, a district court found that Simon's effective demotion to a support staffer prejudiced her, and it granted her a declaratory judgment and roughly $60,000 in attorney fees after a bench trial.

The panel ruled that a court-issued declaration of FMLA violations absent any monetary damages or injunctions to re-hire Simon, who has since taken another job, was within scope of the relief promised by the law.  The FMLA authorized courts to dispense "equitable relief," an undefined term that courts have interpreted to encompass binding orders to hire or promote workers.

The authority to grant declaratory judgments, the panel therefore concluded, could reasonably be inferred.  "It would make little sense for the FMLA to permit courts to grant these heavy-handed remedies yet bar them from using a lighter touch through entry of a declaratory judgment," the panel held.

The panel also affirmed the lower court's finding that the Cooperative prejudiced and harmed Simon even without suffering any cuts to her pay or benefits.  Citing the U.S. Supreme Court's 2002 decision in Ragsdale v. Wolverine World Wide Inc. , the panel held that the demotion of workers returning from medical leave to positions for which they were overly qualified caused injury.

The Commission's remission of Simon's ability to plan lessons and lead classes, the panel therefore concluded, unfairly created a gap in her resume, prejudiced her, and put her employer on the hook for remedies including declaratory judgments and the payment of attorney fees.

The panel affirmed the lower court's separate order of a $59,773.62 attorney fee bill, too.  That fee bill was not an improper imposition of punitive damages, the panel ruled, but was required by the text of the FMLA in the case of a judgment in favor of workers.  "The district judge merely applied the FMLA as written, which expressly requires attorney's fees after a judgment entered in the plaintiff's favor," the panel held.

Wildlife Group Seeks $1.2M in Attorney Fees in Environmental Case

July 12, 2022

A recent Law 360 story by Faith Williams, “Wildlife Org. Attys Seek $1.2M Fees in Marbled Murrelet Fight” reports that counsel who represented two Oregon wildlife organizations in a suit seeking to stop a timber company from cutting down trees in the habitat of a threatened seabird on Tuesday asked a federal judge to award them $1.2 million in attorney fees.

According to the motion filed in Oregon federal court, Cascadia Wildlands, the Center for Biological Diversity and the Audubon Society of Portland accumulated about $1.2 million in costs and fees based on detailed records from seven attorneys over an eight-year period.

However, the attorneys asked the court not to make a decision on the motion at this time, as the parties are continuing settlement discussions.

In June, U.S. District Judge Ann Aiken ruled in favor of the wildlife organizations, saying Scott Timber Co.'s "Benson Snake" logging operation would harm the marbled murrelet, a threatened species since 1992, and would constitute an unlawful "take." The organizations' lead counsel, Daniel Kruse of Kruse & Saint Marie Attorneys at Law, has an hourly rate of $485.

Supporting counsel Charles Tebbutt of the Law Offices of Charles M. Tebbutt PC has an hourly rate of $650, while Daniel Snyder and Parker Jones of the same office have hourly rates of $425 and $250, respectively.

Meanwhile, Nicholas Cady, Cascadia Wildlands in-house counsel, receives $425 an hour. Tanya Sanerib of the Center for Biological Diversity's hourly rate is $500, and Brian Segee of the same office receives $515 an hour.

The motion says the organizations' attorneys spent around 2,600 hours on the case including submitting required paperwork, preparing for trial and successfully litigating the case.

Judge Aiken said in his ruling the plaintiffs are entitled to reasonable attorney fees and costs.

According to the motion, the court is to adjust hourly rates based on inflation, which would increase each hourly rate by $50 to $100. Environmental litigation has also been recognized in Oregon federal court as a practice that requires specific knowledge, justifying increased rates.

Kruse has 16 years of experience as an environmental litigator and specific experience in suits pertaining to the conservation of marbled murrelets, the motion said.

School Parents Denied Attorney Fees in Mask Dispute

May 12, 2022

A recent Law 360 story by Matthew Santoni, “Behrend Law Group Denied Fee Bid in School Mask Dispute” reports that a group of parents who sued to make a Pittsburgh-area school district keep its mask mandate were not the "prevailing party" for the purpose of awarding Behrend Law Group attorney fees just because the Third Circuit had temporarily restored the mask order, a Pennsylvania federal judge ruled.  U.S. District Judge William S. Stickman IV said he had denied the parents a temporary restraining order on the district, and they had never argued their case on the merits on appeal, so a temporary order from a single Third Circuit judge keeping the masks on until the case was dismissed was not the same as a win – and didn't merit nearly $109,000 in fees and costs that the parents' attorneys sought from the Upper St. Clair School District.

"The interim relief granted by the Third Circuit to maintain the status quo pending appeal does not constitute relief on the merits and does not render plaintiffs prevailing parties," Judge Stickman wrote.  "Plaintiffs had the burden of establishing their right to relief as prevailing parties, and the court has determined that they failed to do so.  Attorney fees are, therefore, not available."

Attorneys Ken Behrend and Kevin Miller had represented a group of parents of children with disabilities who claimed in January that the school district's decision to make masks optional while COVID-19 was still spreading would put their children at risk.  The school district, the parents claimed, had violated the Americans with Disabilities Act by forcing them to choose between risking infection and being shunted back into online learning.

Judge Stickman had denied the parents' request for an injunction, ruling that they were unlikely to succeed on the merits of their ADA claim.  But when they appealed to the Third Circuit later in January, U.S. Circuit Judge Thomas L. Ambro issued an order that temporarily granted the parents' request to keep the district's mask mandate while the case was pending.

Briefs were submitted, and the case was set for argument in March along with a similar suit from the North Allegheny School District, where a different judge had granted another group of parents' request for an injunction keeping masks.  But before the case was argued, the U.S. Centers for Disease Control & Prevention issued new guidance for measuring the level of the pandemic's spread and the necessity of masks, such that the Third Circuit declared the appeals moot.

When Behrend and Miller argued that the Third Circuit had granted the relief their clients wanted and they were entitled to fees, the school district countered that he hadn't actually gotten a ruling on the merits and therefore hadn't "prevailed." Judge Stickman agreed.  In other cases, the Third Circuit had denied fees to parties that had gotten temporary restraining orders and rulings that they had a likelihood of success on the merits, but the parents in Upper St. Clair hadn't even gotten that much, Judge Stickman said.  The Third Circuit's order wasn't enough, either, he said.

"The relief afforded to plaintiffs was not merits-based," Judge Stickman wrote.  "Here the Third Circuit's entry of a temporary emergency injunction was specifically viewed by that court as temporary.  Moreover, it did not even attempt to discuss and determine the substantive issues raised by the parties -- much less express a determination that plaintiffs had satisfied their burden to demonstrate that injunctive relief was warranted."

Without prevailing on the merits, the parents and Behrend could not seek to make the school district pay their attorney fees and were left to cover their own costs, the judge said.

Lodestar Multiplier Sought in Landmark $508M Title VII Win

May 10, 2022

A recent Law 360 story by Craig Clough, “Attys in Historic $508M Title VII Win Want Bigger Lodestar” reports that attorneys representing a class of 1,100 women in a long-running lawsuit against Voice of America asked a D.C federal judge to grant them a lodestar enhancement, arguing the extraordinary legal work that spanned four decades and resulted in a record $508 million settlement calls for such a boost.

U.S. District Judge Amit Mehta previously blocked the attorneys' bid for an additional $34 million in fees that would have brought their total award to $75 million.  Since that 2020 ruling, the parties have reached a deal on a $19 million lodestar fee award, but the class attorneys asked the court to grant an enhancement up to 4.5 times that amount.

The extraordinary if not unprecedented circumstances of the lawsuit and the record-breaking settlement amount for a case brought under Title VII of the Civil Rights Act supports the enhancement, class attorneys at Steptoe & Johnson LLP said in the motion.  Steptoe & Johnson is one of many firms that represent the class.

"If ever such a case for enhancement was presented, it is this one where, through superior lawyering and incredible determination, counsel was able to achieve — by far — the largest class-wide recovery and largest individual class member recoveries for employment discrimination in the history of the Civil Rights Act," the class attorneys said.

A group of journalists in 1977 sued Voice of America and its former parent agency, the U.S. Information Agency, in a case that eventually covered discrimination claims between 1974 and 1984 and more than 1,000 plaintiffs.  The government disputed the accusations for more than 20 years ahead of the 2000 settlement.

Bruce Fredrickson of Webster & Fredrickson PLLC led the representation of the class for more than four decades. The lodestar motion said he was assigned to the case as a young associate at Hudson Leftwich & Davenport fresh out of law school, and he has remained on the case ever since. He drafted the initial complaint for lead plaintiff Carolee Brady Hartman and first motion to certify the class before losing at trial in1979, according to the motion.  When Hudson Leftwich declined to take up the appeal, Fredrickson represented the women in his spare time until he formed his own firm in 1982.  He eventually reversed the trial outcome on appeal, according to the motion.

"Hartman went on to become the most successful employment discrimination case in history," the class attorneys said in the motion.  "While ultimately requiring additional lawyers engaged in decades of hard work and the resources of additional firms to achieve this result, it was Mr. Fredrickson, with his commitment to excellence, his brilliant strategic decisions, his tenacity in facing off against the best-financed defendant that obstinately refused to accept the judgment of liability, and his sheer perseverance that made this extraordinary success possible."

The class attorneys cited several U.S. Supreme Court cases on lodestar enhancement, including 2010's Perdue v. Kenny A. and 1984's Blum v. Stenson, which said rare and exceptional legal representation can support an enhancement.  "After decades of hard-fought litigation and unsurpassed results, it is clear that this is the rare and exceptional case which unambiguous Supreme Court precedent firmly establishes as appropriate to compensate plaintiffs' counsel for superior lawyering by awarding an enhancement above their lodestar fees," the class attorneys said.  The motion concluded with the class attorneys saying, "The greatest result in the history of Title VII deserves nothing less."

Feds Push Back on $1.9M Fee Request in GMO Salmon Action

April 28, 2022

A recent Law 360 story by Mike Curley, “Feds Push Back On Bid For $1.9M Fees in GMO Salmon Suit” reports that the federal government has opposed a motion from environmental groups seeking $1.9 million in attorney fees and costs in a suit alleging the U.S. Food and Drug Administration wrongly approved the first genetically modified salmon for human consumption, saying the "excessive" fees request follows a "narrow" suit victory.  In an opposition brief, the government said the groups, led by the Institute for Fisheries Resources, saw limited success and repeated losses in the suit, prevailing narrowly on only three of the 14 claims, including losing all claims under the Food, Drug and Cosmetic Act.

That limited success should in turn limit the amount that the court awards in fees, according to the brief, and the government said if the court decides to award fees at all, they should be capped at $246,333.37, while expenses should max out at $1,135.91.  In particular, the government said, the groups should not be able to recover fees for their unsuccessful claims, such as the claims under the FDCA and the bulk of their claims under the National Environmental Policy Act.

The plaintiffs sued the FDA in March 2016, claiming the agency's groundbreaking 2015 approval of a genetically engineered salmon for human consumption poses unknown dangers to food, health and the environment.  AquaBounty used genetic material from a Pacific Chinook salmon and from another fish, the ocean pout, to create a line of fish that grow to full size in about half the standard time, according to court documents.  U.S. District Judge Vince Chhabria in November 2020 found the FDA should have looked deeper into regulating genetically modified salmon, saying the agency didn't meaningfully analyze what might happen to normal salmon if the genetically engineered salmon were able to establish a population in the wild.

The environmental groups asked for the $1.9 million in attorney fees in March, after a previous bid — seeking $2.9 million — was rejected in February.  In March's motion, the groups said they had cut down their billable hours to 3,190.6.  In the brief, the government further argued that the plaintiffs had used "unreasonable" hourly rates that go beyond the market standards in the attorneys' home markets by using the benchmark of San Francisco rates despite three out of four core counsel working out of Portland, Oregon and Seattle.

And the hours claimed are excessive, the government wrote, with the plaintiffs presenting vague time entries and block billing that make it impossible for the government defendants to figure out what hours apply to which claims.  In addition, the time sheets include hours that are not compensable, the government wrote, such as hours spent in separate regulatory proceedings, client solicitation, media activities and challenges to the FDA's deliberative processes.

In other cases, the attorneys' time sheets included duplicative time entries for overlapping efforts among multiple attorneys, resulting in excessive hours for which they should not be billed.  The government also challenged particular time entries linked to tasks that they say were well in excess of the actual time spent on those actions, such as 240 hours marked as being spent on a procedural motion that "did not necessitate so many hours."

Finally, the government argued that the plaintiffs should not be granted any fees under the Equal Access to Justice Act, which allows fees to be granted to the prevailing party unless the government shows its actions were substantially justified.  Both the FDA's approval decision and its conduct in the litigation were substantially justified, the government argued, saying the FDA had diligently examined AquaBounty's application and the U.S. Fish and Wildlife Service concurred with its determination.  That the government prevailed on the bulk of the claims in the suit is further evidence that its position was reasonable, according to the brief, and therefore no fees should be awarded under the EAJA.