S. Wind Women's Ctr. v. Stitt

SOUTH WIND WOMEN'S CENTER LLC, d/b/a TRUST WOMEN OKLAHOMA CITY, on behalf of itself, its physicians and staff, and its patients, et al., Plaintiffs, v. J. KEVIN STITT in his official capacity as Governor of Oklahoma et al., Defendants.

No. CIV-20-277-G

United States District Court, W.D. Oklahoma

August 23, 2021

ORDER

CHARLES B. GOODWIN, United States District Judge

Now before the Court is the Motion for Attorney's Fees (Doc No. 133) filed regarding counsel for the three Plaintiffs^[1] in this matter. Defendants^[2] have responded (Doc. No. 135), and Plaintiffs have filed a Reply (Doc. No 137). As outlined below, the Court finds that Plaintiffs are entitled to an award of reasonable attorney's fees, as well as their uncontested request for nontaxable expenses but that their request as submitted is excessive in several respects and that the award shall be reduced accordingly.

I. Background

On March 24, 2020, in connection with the ongoing COVID-19 pandemic, the Governor of Oklahoma issued an amended version of Executive Order 2020-07, which provided in Paragraph 18: “Oklahomans and medical providers in Oklahoma shall postpone all elective surgeries, minor medical procedures, and non-emergency dental procedures until April 7, 2020.” Compl. Ex. 1, EO 2020-07 (4th Am.) ¶ 18 (Doc. No. 1-1); see also Compl. ¶¶ 1-2. On March 27, 2020, the Governor stated in a press release that the postponement referenced in the Executive Order applied to “any type of abortion services as defined in 63 O.S. § 1-730(A)(1) [that] [is] not a medical emergency as defined in 63 O.S. § 1-738.1[A] or otherwise necessary to prevent serious health risks to the unborn child's mother.” Compl. Ex. 2, Press Release at 1 (Doc. No. 1-2). On April 1, 2020, the Governor amended the prior Executive Order by extending the postponement of elective surgeries and minor medical procedures “until April 30, 2020.” Pls.' Notice Ex. 1, EO 2020-07 (7th Am.) ¶ 18 (Doc. No. 38-1).

Plaintiffs, who are providers of abortion services in Oklahoma, brought this lawsuit on March 30, 2020, pursuant to 42 U.S.C. § 1983, challenging the suspension of abortion services as a violation of due process and equal protection. The following day, Plaintiffs filed a Motion for Temporary Restraining Order and/or Preliminary Injunction (Doc. No. 16). Defendants, who are Oklahoma state officials, filed a Response in Opposition (Doc. Nos. 54, 82). A reply and a surreply followed. See Doc. Nos. 84, 86, 87, 96.

The Court conducted a telephonic hearing on April 3, 2020, and granted Plaintiffs' Motion in part, evaluating the relevant factors and issuing a written temporary restraining order (“TRO”) on April 6, 2020. See S. Wind Women's Ctr. LLC v. Stitt, No. CIV-20-277-G, 2020 WL 1677094 (W.D. Okla. Apr. 6, 2020) (Temporary Restraining Order). Although Plaintiffs had requested that enforcement of the Executive Order and Press Release be enjoined as to provision of all surgical and medication abortion services, the TRO instead prohibited enforcement to the following extent:

1. The prohibition on surgical abortions may not be enforced with respect to any patient who will lose her right to lawfully obtain an abortion in Oklahoma on or before the date of expiration of the Executive Order; and

2. The prohibition on medication abortions may not be enforced.

Id. at *6 (stating that the TRO will expire on April 20, 2020, absent extension by the Court).

Defendants immediately filed an interlocutory appeal to challenge the TRO, moving the Tenth Circuit Court of Appeals to expedite their appeal and also to stay the TRO. Plaintiffs were ordered to respond to the appellate motions within one and two days, respectively. See Pls.' Mem. (Doc. No. 133-1) at 9. On April 13, 2020, the Tenth Circuit granted Defendants' motion to expedite but dismissed Defendants' appeal for lack of jurisdiction and denied as moot the motion to stay the TRO. See S. Wind Women's Ctr. LLC v. Stitt, 808 Fed.Appx. 677, 681 (10th Cir. 2020).

On April 16, 2020, the Governor issued Second Amended Executive Order No. 2020-13, which further revised the directive regarding elective surgeries and minor medical procedures. See Defs.' Suppl. Br. Ex. 1, EO 2020-13 (2nd Am.) ¶ 22 (Doc. No. 102-1). On that same date, the Governor issued Executive Memorandum No. 2020-02, which provided guidance to “be [used] when elective surgeries are performed.” Defs.' Suppl. Br. Ex. 2, EM 2020-02, at 2 (Doc. No. 102-2). And on April 20, 2020, the Governor issued Third Amended Executive Order No. 2020-13, which amended the relevant portion of the Second Amended Executive Order. See Defs.' Notice Ex. 1, EO 2020-13 (3rd Am.) ¶ 22 (Doc. No. 106-1).

Accordingly, as of April 20, 2020, the effect of these Executive Orders, the Press Release, and the Executive Memorandum, absent Court intervention, was “to prevent abortion providers statewide from lawfully performing an elective surgical abortion until: (a) April 24, 2020, for abortions where delay until April 30, 2020, or thereafter would make surgical abortion unavailable under Oklahoma law; or (b) April 30, 2020, for abortions where delay until that date or thereafter would not make surgical abortion unavailable under Oklahoma law. Further, the effect . . ., absent any Court intervention, [was] to prevent abortion providers statewide from lawfully performing an elective medication abortion until April 30, 2020.” S. Wind Women's Ctr. LLC v. Stitt, 455 F.Supp.3d 1219, 1226 (W.D. Okla. 2020) (Preliminary Injunction) (footnote omitted).

On April 20, 2020, the Court held a telephonic hearing regarding Plaintiffs' request for issuance of a preliminary injunction. See Doc. No. 113. That same date, the Court issued a Preliminary Injunction, again ordering that some restrictions in the Executive Orders may be enforced but some may not:

1. Effective[] immediately, the prohibition on surgical abortions may not be enforced with respect to any patient for whom a delay in receipt of the surgical abortion to April 24, 2020, would render elective abortion unavailable to that patient under Oklahoma law; and

2. Effective Friday, April 24, 2020, the prohibition on surgical abortions may not be enforced as to any patient; and

3. Effective[] immediately, the prohibition on medication abortions may not be enforced as to any patient.

S. Wind Women's Ctr., 455 F.Supp.3d at 1232 (stating that the terms of the Preliminary Injunction would remain in place until further order of the Court).

Defendants filed a second interlocutory appeal, along with motions seeking a stay of the Preliminary Injunction. Plaintiffs timely responded to the motions within two days. Pls.' Mem. at 12. On April 27, 2020, the Tenth Circuit denied Defendants' motions but issued a briefing schedule, asking the parties to address whether the appeal was now moot. Id. On August 18, 2020, following briefing, the Tenth Circuit concluded that Defendants' appeal was moot due to the expiration of the State's remaining abortion restrictions on April 30, 2020. See S. Wind Women's Ctr. LLC v. Stitt, 823 Fed.Appx. 677, 680 (10th Cir. 2020). The appellate court rejected Defendants' request to vacate this Court's Preliminary Injunction, holding that it was instead “appropriate to follow the usual practice” and leave the injunction order undisturbed. Id. at 682.

On October 8, 2020, upon stipulation by the parties, the Court deemed this matter dismissed without prejudice and entered judgment. See Doc. Nos. 126, 127. II.Attorney's Fee Awards Under 42 U.S.C. § 1988(b)

Plaintiffs' cited statute, 42 U.S.C. § 1988, “allows the award of ‘a reasonable attorney's fee' to ‘the prevailing party' in various kinds of civil rights cases, including suits brought under § 1983.” Fox v. Vice, 563 U.S. 826, 832-33 (2011) (quoting 42 U.S.C. § 1988(b)). “When a plaintiff succeeds in remedying a civil rights violation . . . he serves ‘as a “private attorney general, ” vindicating a policy that Congress considered of the highest priority.'” Id. at 833 (quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 (1968)).

[P]laintiffs may receive fees under § 1988 even if they are not victorious on every claim. A civil rights plaintiff who obtains meaningful relief has corrected a violation of federal law and, in so doing, has vindicated Congress's statutory purposes. That “result is what matters, ” we explained in Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983): A court should compensate the plaintiff for the time his attorney reasonably spent in achieving the favorable outcome, even if “the plaintiff failed to prevail on every contention.” Ibid.

Fox, 563 U.S. at 834.

“Determining a ‘reasonable attorney's fee' is a matter that is committed to the sound discretion of a trial judge, but the judge's discretion is not unlimited.” Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 558 (2010) (citation omitted) (explaining that the court must “provide a reasonably specific explanation” of its fee determination). The fee applicant must “submit appropriate documentation to meet ‘the burden of establishing entitlement to an award.'” Fox, 563 U.S. at 838 (quoting Hensley, 461 U.S. at 437). But “the determination of fees should not result in a second major litigation, ” and trial courts “should not . . . become green-eyeshade accountants.” Id. (internal quotation marks omitted). Accordingly, “trial courts may take into account their overall sense of a suit” and “may use estimates in calculating and allocating an attorney's time.” Id.

III. Plaintiffs' Request for Attorney's Fees

Plaintiffs' Motion initially requested $548, 143.75 in attorney's fees for 1658.69 hours of work performed. See Pls.' Mot. at 1-2; Pls.' Mem. at 20, 22, 23-24 (presenting this figure as the “lodestar” of...