On April 21st, the U.S. Supreme Court
unanimously reaffirmed the 11th Circuit Court of Appeals’ decision that reasonable attorney
fee awards may include enhancements for superior performance under a federal
fee-shifting statute in
civil rights cases. (Perdue v. Kenny A., U.S. No. http://08-970, 4/21/10). However, the enhancement
may only be allowed in “extraordinary circumstances.”
The issue of when an enhancement may be allowed was raised in a
civil rights class action brought on behalf of foster children throughout Fulton County and DeKalb
County, Georgia by
private attorneys and non-profit children’s rights advocacy groups alleging that the
State’s foster case system violated 42 U.S.C. Sec. 1983, as well
as other state and federal laws. After 3 years of extensive motion and
discovery work, both sides resolved the issue through
mediation, entering into a consent decree aimed at implementing sweeping reforms.
As part of the decree, plaintiffs’ attorneys were entitled to fees
pursuant to 42 U.S.C. Sec. 1988. Fees allowed under Sec. 1988 are subject
to the same standards as those allowed pursuant to federal
employment discrimination and
The fees were determined by a lodestar figure (reasonable hourly rate multiplied
by hours worked). The lodestar figure was then enhanced by a factor of
1.75 based on the plaintiffs’ attorney’s quality of work –
which the district court noted, “far exceeded what the foster children
could have received in the private market” and the exceptional results achieved.
The U.S. Court of Appeals for the 11th Circuit
affirmed the district court’s enhancement. Kenny A. v. Perdue, 532 F.3d 1209,
1214 (11 Cir. 2006).
Writing for the majority,
Justice Alito (Perdue v. Kenny A., U.S. No. http://08-970, 4/21/10) reaffirmed that
the quality of an attorney’s performance and results obtained may
provide the basis for an enhancement. He further noted that the “strong
presumption” that the lodestar is reasonable may be overcome in
those rare circumstances in which the lodestar does not adequately account
for a factor that may properly be considered in determining a reasonable
The Supreme Court set forth
three factors (Perdue v. Kenny A., U.S. No. http://08-970, 4/21/10) for determining
when an enhancement may be awarded.
• The lodestar calculation fails to adequately measure the attorney’s
true market value
• The attorney’s performance includes an extraordinary outlay
of expense and the litigation is exceptionally protracted
• Extraordinary circumstances in which an attorney’s performance
involves an exceptional delay in the payment of fees
Although the Supreme Court found that enhancements may be allowed in exceptional
cases, it reversed the enhancement award in this case, finding that specific
evidence did not exist supporting the increased fee in this matter.
For more information or if you have questions regarding civil rights or
discrimination, please contact
The Buckley Law Firm, LLC, a Georgia employment law firm dedicated to protecting individual’s rights.