Hughes v. McCarthy

CAROLE L. HUGHES, et al., Plaintiff, v. JOHN B. McCARTHY, Medicaid Director, Defendant.

CASE NO. 5:10CV1781

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO EASTERN DIVISION

September 30, 2015

PEARSON, J.

JUDGE BENITA Y. PEARSON

MEMORANDUM OF OPINION AND ORDER

[Resolving ECF No. 53]

Pending is Plaintiffs' Motion for Attorney Fees and Costs (ECF No. 53). As prevailing parties under 42 U.S.C. § 1988, Plaintiffs seek $90,702.50 in attorneys' fees and $1,832.81 in costs for the effort expended pursuing the substantive claims in this case. Plaintiffs also seek a 35% multiplier to the proposed lodestar amount. The Court has been advised, having reviewed the parties' briefs and submissions, and the applicable law. The Court has also considered the entire record in this matter, and being otherwise advised in the premises, grants the motion in part.

I.

Plaintiffs Carole and Harry Hughes and Lester and Thelma Bardin¹ brought the within non-class action pursuant to 42 U.S.C. § 1983 against Defendant in his official capacity asDirector of the Ohio Department of Job and Family Services ("ODJFS").² On August 12, 2010, Plaintiffs filed a four-count Complaint for Declaratory and Injunctive Relief (ECF No. 1) in the case at bar. Plaintiffs alleged that Defendant was violating federal and state Medicaid law through his interpretation and implementation of the annuity provisions of the Medicaid Act. Count I was for violation of Plaintiffs' rights under the Medicaid Act. Count II contended that an Ohio regulation was preempted by the Medicaid Act. Count III, which addressed income issues, maintained that Ohio's regulations are preempted by the Medicaid Act. Finally, Count IV asserted an equal protection violation.

Plaintiffs moved for preliminary injunction, and Defendant moved to dismiss.³ In May 2012, the Court granted Defendant summary judgment. Hughes v. Colbert, 872 F. Supp.2d 612 (N.D. Ohio May 29, 2012).

On October 25, 2013, the Court of Appeals for the Sixth Circuit reversed in part the previous order of this Court and remanded the case for further proceedings. Hughes v. McCarthy, 734 F.3d 473 (6th Cir. 2013) (ECF No. 28). Defendant filed a petition for a writ of certiorari, which was denied on March 31, 2014. McCarthy v. Hughes, 134 S.Ct. 1765 (2014) (ECF No. 35).

On June 26, 2014, Plaintiffs filed a Motion for an Order Granting Relief Requested in the Complaint (ECF No. 37). On October 31, 2014, the Court denied the portions of the motion that were not moot. See Memorandum of Opinion and Order (ECF No. 52).

II. Attorneys' Fees

The Supreme Court has indicated that the courts are to calculate attorney fees under the "lodestar" method. Blanchard v. Bergeron, 489 U.S. 87, 94 (1989); Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565 (1986) (Delaware Valley I). Under this methodology the number of hours reasonably expended by the attorney are multiplied by the attorney's reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Lavin v. Husted, 764 F.3d 646, 649 (6th Cir. 2014). There is a "strong presumption" that the figure so calculated represents a reasonable fee. Delaware Valley I, 478 U.S. at 565. The lodestar, however, must be based on the "prevailing market rates in the relevant community." Blum v. Stenson, 465 U.S. 886, 895 (1984).

While the burden of persuasion is on the fee applicant to document the hours and rates in the lodestar amount, Hensley, 461 U.S. at 437, the burden of production to challenge the reasonableness of the requested fee is on a party seeking an adjustment of that amount—Defendant in the case at bar, Rode v. Dellarciprete, 892 F.2d 1177, 1183 (3rd Cir. 1990).

A. Whether Ohio state courts are bound by Hughes v. McCarthy, 734 F.3d 473 (6th Cir. 2013)

Plaintiffs state "[t]his legal issue has been litigated and is being re-litigated . . . in the First Ohio [Appellate] District." ECF No. 56 at PageID #: 563. Ohio state courts, however, are notbound by lower federal court opinions. See ECF No. 55 at PageID #: 529 n. 1. The briefing of Plaintiffs' Motion for an Order Granting Relief Requested in the Complaint (ECF No. 37), as well as the within motion, reflect a misunderstanding or an unwillingness by Plaintiffs' counsel to accept the ruling of the Supreme Court of Ohio in State v. Burnett, 93 Ohio St.3d 419 (2001). It provides, in pertinent part:

. . . It has long been settled that the Supremacy Clause binds state courts to decisions of the United States Supreme Court on questions of federal statutory and constitutional law. The United States Supreme Court has not, however, indicated whether state courts are bound by inferior federal court decisions.

* * *

From a historical perspective, the prospect that states would disregard federal law was the catalyst for the inclusion of the Supremacy Clause in the Constitution. The intention of the drafters of the United States Constitution to extend the application of the Supremacy Clause to any federal court that would later be created, however, has not been definitively determined by the United States Supreme Court, and the federal courts of appeals are split on the issue. . . .

* * *

We therefore conclude that we are not bound by rulings on federal statutory or constitutional law made by a federal court other than the United States Supreme Court. We will, however, accord those decisions some persuasive weight.

Id. at 422-24 (internal citations omitted).

B. Hourly Rate

Plaintiffs' counsel seek varying hourly rates. William J. Browning, Esq. and Richard F. Meyer, Esq. claim a $435 hourly rate. David S. Banas, Esq. and Davis S. Arndt, Esq. request a $205 hourly rate. Plaintiffs also claim a $125 hourly rate for time spent by law clerks. ECF No. 53-2 at PageID #: 481. In support of their request, Plaintiffs have submitted the Declaration (ECF No. 53-2) and curriculum vitae (ECF No. 53-5) of William J. Browning. Plaintiffs also provide the Affidavits of Janet L. Lowder (ECF No. 53-3) and Lawrence A. Frolik (ECF No. 53-4),⁴ two experts who have reviewed the itemized time and expense records (ECF No. 53-2 at PageID #: 483-96) and the decision of the Sixth Circuit in Hughes v. McCarthy, 734 F.3d 473 (6th Cir. 2013) (ECF No. 28). Attorney Lowder and Professor Frolik also attest to the prevailing market rates of compensation for attorneys in the relevant legal market for similar work. Finally, Plaintiffs submit a Letter (ECF No. 56-1) approved by 28 Ohio attorneys urging the Court to approve the fee as requested.

Defendant argues the Court should not award the requested hourly rate of $435 for lead counsel of record and his partner. ECF No. 55 at PageID #: 531-34.⁵ Defendant posits that "a reasonable hourly rate for the lodestar hourly rate for Attorneys Browning and Meyer here would be $250 to $300." ECF No. 55 at PageID #: 534.

Defendant relies upon a report from the Ohio State Bar Association entitled The Economics of Law Practice in Ohio in 2013, A Desktop Reference,⁶ a published market survey, as a resource to measure the hourly rates in question from the standpoint of the market. The report indicated that the average hourly billing rate for law firms the size of Browning & Meyer Co., LPA (which currently is five lawyers)⁷ was $237. See id. at 39. The rate at the 75thpercentile for such firms was $250. See id. Plaintiffs' counsel's firm is located in Worthington, Ohio, a suburb of Columbus. The average hourly rate billed by suburban Columbus firms was $213, and was $250 at the 75th percentile. See id. Lawyers with Attorney Browning's years of experience (which currently is almost 32 years) billed at an average rate of $249, with the 75th percentile being $300. See id. And, for lawyers specializing in elder law, the average hourly rate was $261, and the rate at the 75th percentile for elder law was $300. See id. at 40.

The undersigned has previously approved the use of Ohio State Bar Association report in ruling upon an application for attorney fees. In Cogar v. Astrue, No. 5:11CV1585, 2012 U.S. Dist. LEXIS 184201, at *3 (N.D. Ohio Nov. 13, 2012) (Pearson, J.), the Court found that the "Midwest Urban CPI" and Ohio State Bar Association report entitled The Economics of Law Practice in Ohio sufficient evidence to warrant an increase in the hourly rate.

The Court finds that the $435 hourly rate of compensation requested by Plaintiffs for Attorneys Browning and Meyer is not within the reasonable hourly rate of compensation for attorneys in the relevant market area. The Court concludes that an hourly rate of $300 is reasonable for attorneys of Messrs. Browning and Meyer's skill and experience. Braun v. Ultimate Jetcharters, Inc., No. 5:12CV1635, 2014 WL 3749418, at *16 (N.D. Ohio July 30, 2014) (Lioi, J.) (citing the Desktop Reference as a basis for reducing hourly rate of counsel); Libertarian Party of Ohio v. Husted, Case No. 2:11-cv-722, 2013 WL 4833033, at *5 (S.D. Ohio, Sept. 11, 2013) (finding $300, a rate awarded in similar cases in the district around that time, to be sufficient to attract competent counsel to undertake an "inherently complex" § 1983 voting rights case when counsel had "obtained all the relief sought by his clients").

C. Reasonableness of the Number of Hours Expended

In support of their request that their attorneys be compensated for a total of 332.9 hours, Plaintiffs have submitted itemized time and expense records (ECF No. 53-2 at PageID #: 483-96). Defendant argues the Court should not award fees for time spent on other cases, time spent on unsuccessful motions, or time spent on purely clerical work. ECF No. 55 at PageID #: 528-31. Defendant does not quantify its objections to the reasonableness of the hours billed, which makes the task more difficult for the Court. Therefore, the Court has attached a copy of Plaintiffs' itemized time and expense records as Exhibit A. The hours that have been excluded, for the reasons stated below, have been highlighted.

Defendant identifies the Aug-11-10,...