[00:00:00] Speaker 00:
Good morning, your honors, and may it please the court.

[00:00:03] Speaker 00:
The law promises plaintiffs' attorneys no more than a reasonable attorney fee award, but they got much more here.

[00:00:11] Speaker 00:
They should not have received fees incurred litigating failed claims, and the lodestar should not have been inflated 100% across the board.

[00:00:21] Speaker 00:
The district court, however, did both and awarded a staggering $2.5 million in attorney's fees.

[00:00:28] Speaker 00:
That award should be vacated.

[00:00:30] Speaker 00:
I'd like to start, Your Honors, with the error related to the failed claims.

[00:00:36] Speaker 00:
The law is clear in this circuit and at the Supreme Court that fees incurred litigating failed claims cannot be counted, cannot be taken into account for a reasonable attorney fee award.

[00:00:47] Speaker 00:
That's true under Section 1988, the more general fee statute, but it is particularly true under the PLRA.

[00:00:54] Speaker 00:
And the language of the PLRA demonstrates why.

[00:00:57] Speaker 00:
Fees are not allowed except

[00:00:59] Speaker 00:
to the extent they are incurred directly and reasonably in vindicating an actual violation of a plaintiff's rights.

[00:01:07] Speaker 00:
Here, the plaintiff brought seven claims in the underlying action against ten defendants.

[00:01:15] Speaker 00:
Only one of those claims ultimately succeeded against only five defendants.

[00:01:19] Speaker 02:
So I take it if we agree with you

[00:01:22] Speaker 02:
we would send this back to the district court to sort out the allocation of fees among and between the claims, is that right?

[00:01:30] Speaker 00:
That's right, Your Honor.

[00:01:31] Speaker 00:
The factual record here does not provide this court, I think, sufficient basis to make that determination.

[00:01:36] Speaker 00:
And I do want to address a characterization that I think the district court was responding to fairly based on the argument before it but in a somewhat limited way.

[00:01:45] Speaker 00:
And that was that the only way to account for the failed claims was through some

[00:01:51] Speaker 00:
mathematical division of six-sevenths of the attorney's fee award needed to be accounted for.

[00:01:58] Speaker 00:
And that's not what this court has said, that's not what the Supreme Court has said.

[00:02:02] Speaker 00:
At times, that may be the most appropriate way to do it because of the difficulty in allocating fees incurred in litigating the successful claim versus the

[00:02:12] Speaker 00:
unsuccessful claims, but the point is that the fees do need to be allocated.

[00:02:17] Speaker 00:
There does need to be an accounting for fees incurred in litigating field claims.

[00:02:22] Speaker 00:
And the district court made a finding that was clear error.

[00:02:26] Speaker 00:
It found that all of the claims were interrelated or interwoven, I think is the term the district court used.

[00:02:32] Speaker 00:
Court said that they all related to the core claim of vindicating the sex reassignment surgery, and that's not true.

[00:02:41] Speaker 00:
That's apparent from the Second Amendment complaint, and it is apparent from the litigation below in defending against the first dispositive motion and on the preliminary injunction.

[00:02:53] Speaker 00:
The plaintiff brought claims for a host of things, some related to the prospective injunctive relief related to the surgery and the denied medical care under the Eighth Amendment, but a number of others related to historical grievances, such as harm from other inmates.

[00:03:10] Speaker 00:
And to me, that's the most clear example of a difference.

[00:03:13] Speaker 04:
Harm from other what?

[00:03:15] Speaker 00:
From other inmates, Your Honor.

[00:03:16] Speaker 00:
Thank you.

[00:03:17] Speaker 00:
There was a claim by plaintiffs that the plaintiff was assaulted by other inmates.

[00:03:24] Speaker 00:
It may have been an account of the gender dysphoria condition.

[00:03:28] Speaker 00:
But in any event, it was seeking that claim sought monetary damages for failure to protect.

[00:03:34] Speaker 00:
And failure to protect claim under the Eighth Amendment is far different than a deliberate indifference claim for denial of medical care.

[00:03:41] Speaker 02:
I wanted to ask you about the claims that appeared to underlie the preliminary injunction, which were

[00:03:47] Speaker 02:
denial of medical care under the Eighth Amendment, sex discrimination under the Fourteenth, and ACA sex discrimination.

[00:03:58] Speaker 02:
In your view, are fees related to each of those claims that were the basis for the preliminary injunction legitimate claims under the PLRA?

[00:04:11] Speaker 00:
For purposes of allocating fees?

[00:04:13] Speaker 00:
Yes.

[00:04:15] Speaker 00:
No.

[00:04:16] Speaker 00:
Under section 1988, I think the answer is much closer and much harder.

[00:04:19] Speaker 00:
But even under this court's case law in McGuinness and McCowen, the court is pretty clear that fees related to any failed claims must be accounted for.

[00:04:27] Speaker 00:
But under the PLRA, the controlling decision in this court is Dannenberg.

[00:04:32] Speaker 00:
And Dannenberg is very clear.

[00:04:34] Speaker 00:
It says that unless Dannenberg's counsel expended no time pursuing the claims on which Dannenberg was unsuccessful, the court's conclusion that all hours were directly and reasonably incurred in proving an actual violation cannot be correct.

[00:04:51] Speaker 00:
And there the district court said,

[00:04:53] Speaker 00:
all claims related to the principal contention was ultimately vindicated.

[00:04:57] Speaker 00:
Nevertheless, this court said, unless every single hour was spent vindicating that actual violation because of the specific language of the PLRA, they cannot be included in the initial lodestar.

[00:05:09] Speaker 02:
So let's unpack it.

[00:05:12] Speaker 02:
Would hours related to proving denial of medical care be legitimate in terms of the success here?

[00:05:22] Speaker 00:
I think so, Your Honor.

[00:05:23] Speaker 02:
So there's one.

[00:05:25] Speaker 02:
Yeah.

[00:05:25] Speaker 02:
And is that also if you determine that the transgender denial also is sex discrimination, why wouldn't 14th Amendment sex discrimination also be included?

[00:05:43] Speaker 00:
Well, so I think it starts to depart from the language of the PLRA because of the additional elements that would need to be proved for a sex discrimination claim.

[00:05:54] Speaker 00:
Deliberate indifference under the Eighth Amendment does not require any discrimination on behalf of

[00:05:59] Speaker 00:
these state officials.

[00:06:00] Speaker 00:
They could be deliberately indifferent across the board to every inmate suffering from this condition.

[00:06:05] Speaker 00:
But to discriminate requires differential treatment.

[00:06:08] Speaker 00:
To discriminate requires different proof, different evidence, and that was sought.

[00:06:12] Speaker 00:
If you look at the discovery below, the plaintiff sought discovery against each and every of those 10 named defendants.

[00:06:18] Speaker 00:
And that brings me to the point regarding the claims against the 10 named defendants.

[00:06:22] Speaker 00:
Even if you agree, even if I concede that there's a close enough nexus, a sufficient nexus

[00:06:29] Speaker 00:
on the gender sex reassignment surgery claims.

[00:06:34] Speaker 00:
The fact is that half of the defendants were completely dismissed on all claims.

[00:06:39] Speaker 00:
The plaintiff failed against half of the defendants.

[00:06:42] Speaker 00:
They were dismissed from the case entirely.

[00:06:45] Speaker 04:
Counsel, if I could ask you a question.

[00:06:48] Speaker 04:
It seems to me that we're not gonna be in a position, in our decision on this case, to make a precise calculation of what the lodestar value is, because we can't sort out all these issues on this record.

[00:07:14] Speaker 04:
And so there will be a remand to the district court to determine the Lodestar figure correctly.

[00:07:24] Speaker 04:
And my question is, once that figure is determined, under the PLRA, can the fees still be enhanced?

[00:07:37] Speaker 00:
Thank you for bringing me to the second point, which I think is the more substantive, the bigger point here.

[00:07:43] Speaker 00:
And the answer to that is no.

[00:07:45] Speaker 00:
And there are a few reasons why, Your Honor.

[00:07:47] Speaker 00:
The first and most notable reason is because the Supreme Court in Purdue said that enhancement is not allowed without the threshold determination that an enhancement is necessary in order to attract competent counsel.

[00:08:02] Speaker 00:
Here, plaintiff had not just competent counsel, but 19 competent counsel.

[00:08:07] Speaker 00:
That large team of attorneys demonstrates

[00:08:10] Speaker 00:
that there was not a necessity for the enhancement, which the Supreme Court sets as a threshold determination.

[00:08:17] Speaker 00:
Why is that a threshold determination?

[00:08:19] Speaker 00:
It is to ensure that enhancements do not become commonplace, but instead are reserved for the rare and exceptional cases.

[00:08:26] Speaker 00:
And the district court looked at the customary fees that plaintiffs' counsel might be able to get in the private market or compared to the prevailing market rate in the private sector versus what the PLRA offered.

[00:08:39] Speaker 00:
And I understand that in Kelly, this court said that the 150% cap under the PLRA does not prevent an enhancement.

[00:08:47] Speaker 00:
I'm not arguing that.

[00:08:49] Speaker 00:
That might be an argument for another day, but it doesn't control this case.

[00:08:53] Speaker 00:
Well, I should say it controls this panel.

[00:08:55] Speaker 00:
It does not in any way affect the violation of the enhancement being awarded here.

[00:09:01] Speaker 00:
What is the problem with the enhancement?

[00:09:03] Speaker 00:
your honors, is that that threshold determination wasn't made.

[00:09:06] Speaker 00:
And if it is true that a customary fee variability between the customary fees in the prevailing market and the PLRA is sufficient to award an enhancement

[00:09:16] Speaker 00:
then enhancement will have to be awarded every single time, or at least it will be sufficient to award an enhancement every single time.

[00:09:22] Speaker 04:
Council, I have a question about that point.

[00:09:26] Speaker 04:
If an enhancement is determined to be proper in this case, is it proper to enhance to the extent of what the normal market rate for fees are, or is there some other measure of enhancement?

[00:09:46] Speaker 00:
The measure, Your Honor, should be the amount necessary to attract competent counsel, not to bring the plaintiff's counsel in line with what they would otherwise get in the private marketplace.

[00:09:58] Speaker 00:
And that's what the Supreme Court said in both Bloom, in Delaware Valley, and then repeated again in Purdue.

[00:10:04] Speaker 00:
It said the purpose of federal fee-fitting shifting statutes is to provide plaintiffs with counsel.

[00:10:10] Speaker 00:
not to provide plaintiff's counsel with fees that they would otherwise be able to obtain in the private marketplace.

[00:10:17] Speaker 00:
And the district court here, I'm not sure what's behind the 100% enhancement.

[00:10:22] Speaker 00:
It's not explained.

[00:10:23] Speaker 00:
That's another defect with the order.

[00:10:25] Speaker 00:
In Purdue, Justice Alito writing for the majority noted, why was it 75%, not 100%, like what was asked for, or 50%.

[00:10:33] Speaker 00:
Here, there's no explanation of why the 2.0 multiplier was applied across the board.

[00:10:37] Speaker 00:
There was no specific findings which are necessary to link the attorney's ability to the enhancement.

[00:10:46] Speaker 00:
There's no explanation in the record for this court to conduct meaningful appellate review on why that 100% multiplier was applied.

[00:10:54] Speaker 00:
And in fact,

[00:10:54] Speaker 00:
If you look at the billing affidavits from plaintiff's counsel, it suggests that that 100% enhancement is arbitrary.

[00:11:04] Speaker 00:
So for example, some counsel

[00:11:06] Speaker 00:
were more junior and their rates were lower.

[00:11:09] Speaker 00:
Some counsel were more senior and the rates were higher.

[00:11:11] Speaker 00:
And if the district court was trying to account for the customary fee variability, which is the first reason that he gave and the most substantive reason, then that 100 percent fee

[00:11:25] Speaker 00:
Enhancement across the board would not take an account of the different council's abilities their billing rates and how to bring it in line with the market again Judge gold I do think it is inappropriate for that to be the measuring stick But if it is the measuring stick here, it was conducted arbitrarily so I understand

[00:11:43] Speaker 04:
that your position is there should be no enhancement of the lodestar figure here, because it wasn't necessary to enhance, to attract good counsel.

[00:11:59] Speaker 04:
That's correct, okay.

[00:12:01] Speaker 04:
But if there is to be some enhancement, if our panel disagreed with you,

[00:12:08] Speaker 04:
than determine some enhancement was appropriate.

[00:12:14] Speaker 04:
Would we be in a position to determine what percentage that enhancement could be?

[00:12:21] Speaker 00:
Again, I hesitate to say this, but I think not because

[00:12:27] Speaker 00:
It is so fact bound.

[00:12:28] Speaker 00:
There are findings that need to be made.

[00:12:30] Speaker 00:
And the findings, I think, that need to be made most specifically are what enhancement would be necessary to attract competent counsel?

[00:12:40] Speaker 00:
Is it 10%?

[00:12:41] Speaker 00:
Is it 20%?

[00:12:42] Speaker 02:
With respect to the enhancement,

[00:12:47] Speaker 02:
There are two other factors here that play in and I'd appreciate your comments on those and that would be an extraordinary result.

[00:12:54] Speaker 02:
This was the first ever prisoner as I understand it who was entitled to gender confirmation surgery.

[00:13:01] Speaker 02:
And then secondly, council was operating under intense time pressures because we're all familiar with the record.

[00:13:08] Speaker 02:
How do those factors play in if at all?

[00:13:11] Speaker 00:
I would like to reserve some time for rebuttal.

[00:13:13] Speaker 00:
And I do want to answer your question.

[00:13:14] Speaker 00:
I will.

[00:13:15] Speaker 02:
I'm sure our presiding judge will be lenient.

[00:13:18] Speaker 04:
We'll give you some rebuttal time.

[00:13:20] Speaker 04:
Whatever the time you've got allowed to you, we'll add to it to let you fully answer the question of any judge on the panel.

[00:13:31] Speaker 00:
OK, thank you.

[00:13:33] Speaker 00:
Your Honor, that is a good question.

[00:13:34] Speaker 00:
And in Purdue, the court set out three circumstances that it envisioned an enhancement would be appropriate.

[00:13:41] Speaker 00:
The first was the Lodestar calculation does not adequately or fairly measure the attorney's true market value.

[00:13:50] Speaker 00:
The second is an extraordinary outlay of resources.

[00:13:53] Speaker 00:
That's not at issue here.

[00:13:54] Speaker 00:
And the third is an exceptional delay in payment of fees, and that also is not at issue here.

[00:14:00] Speaker 00:
If any of those three fit, it's the first.

[00:14:04] Speaker 00:
And let me talk about the extraordinary circumstances, because I'm not up here saying that there wasn't a great victory achieved by plaintiff's counsel.

[00:14:14] Speaker 00:
They did good work.

[00:14:16] Speaker 00:
They won for their plaintiff.

[00:14:18] Speaker 00:
That's what we as lawyers are supposed to do every time.

[00:14:23] Speaker 00:
Now, you're right that this was somewhat novel.

[00:14:25] Speaker 00:
I take a little bit of issue with whether this was the first case in the country.

[00:14:29] Speaker 00:
I think there was a Central District of California inmate that received gender confirmation surgery as well before the plaintiff did.

[00:14:35] Speaker 02:
But anyway, it was not commonplace.

[00:14:38] Speaker 02:
We could all agree on that.

[00:14:39] Speaker 00:
Yes.

[00:14:40] Speaker 00:
And so then the question becomes, Your Honor, to what extent do extraordinary results bear on that factor?

[00:14:47] Speaker 00:
And the Supreme Court in Purdue, I think, was pretty clear.

[00:14:50] Speaker 00:
The answer has to be

[00:14:52] Speaker 00:
No, unless there are specific findings that tie plaintiff's efforts, plaintiff's skill to the result achieved, because there could be other reasons for the result, such as, I'm not saying this is the case, but incompetent counsel on the other side, or less than competent counsel on the other side, or luck.

[00:15:10] Speaker 00:
And that finding just isn't in the record.

[00:15:12] Speaker 00:
So I will sit down now, and I look forward to the questions.

[00:15:15] Speaker 00:
Any questions on rebuttal?

[00:15:16] Speaker 04:
And for your planning purposes, I'll give you three minutes of rebuttal time.

[00:15:21] Speaker 03:
Can I ask one question that doesn't count against his three minutes?

[00:15:24] Speaker 03:
Sure.

[00:15:24] Speaker 03:
I'm a district court judge, so all my heroes are district court judges, with all due respect to my colleagues.

[00:15:31] Speaker 03:
And probably two at the very top of my list are Lynn Windmill and Charles Breyer.

[00:15:39] Speaker 03:
Chuck Breyer wrote the Dannenberg decision when he was sitting on the

[00:15:44] Speaker 03:
Ninth Circuit as I am now and so I think that's a very persuasive thing for me.

[00:15:51] Speaker 03:
But Lynn Windmill, he's down in the trenches, he heard the whole case, he's familiar with everything.

[00:15:57] Speaker 03:
Shouldn't we defer to him on some of these things maybe because he didn't use precise language that you would say, oh, he didn't make a finding here or he made an error there.

[00:16:09] Speaker 03:
Should the district court be given some leeway to make a call on something like this?

[00:16:15] Speaker 00:
The answer is generally yes.

[00:16:17] Speaker 00:
On a fee award, the district court is given leeway.

[00:16:20] Speaker 00:
It is an abuse of discretion standard.

[00:16:22] Speaker 00:
But the court does need to separate what questions it's looking at.

[00:16:26] Speaker 00:
And on questions of statutory interpretation and application of the PLRA, that's reviewed de novo.

[00:16:31] Speaker 00:
And so Judge Windmill, able as he is, is not entitled to discretion in his interpretation and application of the PLRA.

[00:16:38] Speaker 00:
here and and I know that My friend on the other side will probably get up and say they're talking about magic words like necessary No, we are not we're talking about a finding that the Supreme Court said has to be specific and made regarding whether The enhancement was necessary to attract competent counsel the 19 attorneys on plaintiff's side demonstrate that finding could not have been made and

[00:17:03] Speaker 03:
What about the fact that we now have a culture where judges and lawyers are attacked in social media for taking on cases that a certain element of society

[00:17:20] Speaker 03:
hates them for.

[00:17:22] Speaker 03:
Isn't that going to make it more difficult to attract lawyers to an issue like this where they're vilified as how could those lawyers possibly defend or represent a sex offender who wants a sex change?

[00:17:36] Speaker 03:
What could be more awful than that and subject them to harassment and swatting and who knows what?

[00:17:45] Speaker 00:
That's an excellent question, Your Honor.

[00:17:47] Speaker 00:
And let me answer in two parts.

[00:17:49] Speaker 00:
The answer is yes.

[00:17:50] Speaker 00:
And in the Purdue case at the 11th Circuit, Judge Carnes talked about that.

[00:17:54] Speaker 00:
And he said, I can envision a circumstance where somewhere, perhaps in the South, there is a racial discrimination claim that nobody in town is willing to bring.

[00:18:05] Speaker 00:
And it's almost impossible to get counsel.

[00:18:08] Speaker 00:
Maybe an enhancement is necessary there.

[00:18:09] Speaker 00:
So yes, the thrust of your question, the answer to that is yes.

[00:18:13] Speaker 00:
But I also want to point the court

[00:18:14] Speaker 00:
to Judge Sutton's decision in LWV Skirmety in the Sixth Circuit, which noted that today in this climate, the type of issues that plaintiff was litigating, that plaintiff's counsel signed up to do, are in no way difficult to attract the most able counsel.

[00:18:30] Speaker 00:
The largest law firms from coast to coast are litigating these cases pro bono across the nation.

[00:18:36] Speaker 03:
Thank you, counsel.

[00:19:01] Speaker 01:
Good morning, Your Honors.

[00:19:02] Speaker 01:
Lori Rifkin for the EPL-E.

[00:19:06] Speaker 01:
Throughout this case and the appeal, defendants' objections have been a moving target, changing from the district court to their opening appellate brief, and again in their reply.

[00:19:16] Speaker 01:
One thing remains constant, however.

[00:19:19] Speaker 01:
Defendants have not met their burden to demonstrate abuse of discretion by the district court, and nor, and this is very important for your honor's questions that you asked the counsel on the other side, nor did they meet their evidentiary burden in the district court

[00:19:33] Speaker 01:
to contest plaintiff's fees on the issues they now appeal.

[00:19:37] Speaker 01:
My colleague's answers make this evident.

[00:19:40] Speaker 01:
When you asked him about whether you have enough information to adjust any suggested adjustments for the load start or enhancement on this record, he said you do not.

[00:19:51] Speaker 01:
And that's because in the district court, defendants did not put in any evidence

[00:19:58] Speaker 01:
beyond their own counsel's declaration of their hourly rates to contest the evidence that plaintiffs put in about our own hourly rates and about the local prevailing market rates in Boise.

[00:20:10] Speaker 01:
Defendants chose not to do that.

[00:20:11] Speaker 01:
They're required to do that by this court's precedence.

[00:20:14] Speaker 01:
They're required to do that under the local rules of the district of Idaho.

[00:20:20] Speaker 01:
Nor, instead of

[00:20:23] Speaker 01:
challenging plaintiffs asked for a 2.0 multiplier for all counsel.

[00:20:29] Speaker 01:
Instead of challenging that on evidence, for example, pointing out their opinion that certain counsel shouldn't be awarded a 2.0 multiplier because of their experience or whatever else they now raise, defendants declined to make that argument in the district court.

[00:20:45] Speaker 01:
Instead, they swung for defenses.

[00:20:47] Speaker 01:
They said the PLRA prohibits multipliers, an argument they've now dropped before this court.

[00:20:55] Speaker 01:
So in the district court,

[00:20:57] Speaker 01:
Defendants also argued that plaintiffs were the big losers.

[00:21:02] Speaker 01:
Unlike what my colleague just said, it was defendants who said there should be a mathematical reduction in Lodestar.

[00:21:08] Speaker 01:
They gave numbers like 85% reduction, 75% reduction.

[00:21:12] Speaker 01:
These are clearly not permitted under this court's precedent.

[00:21:16] Speaker 01:
It was the district court that rejected that mathematical formula.

[00:21:20] Speaker 01:
And the district court found that all of plaintiff's claims were intertwined.

[00:21:24] Speaker 01:
And I want to make a really key point here.

[00:21:26] Speaker 01:
If you look at the second amended complaint, all claims are based on allegations of failure to provide appropriate treatment for gender dysphoria, protection from harm.

[00:21:39] Speaker 01:
The very first allegation under that claim for relief in the second amended complaint is failure to provide adequate treatment,

[00:21:47] Speaker 01:
leading to the harm Ms.

[00:21:49] Speaker 01:
Admo experienced.

[00:21:50] Speaker 01:
If you look at the negligence claims, same thing.

[00:21:54] Speaker 01:
These are not separable claims.

[00:21:56] Speaker 01:
They might have additional facts that support them but there is a nexus and they were all based on achieving the same relief.

[00:22:04] Speaker 02:
Appropriate... Well, I hear that argument but as council has pointed out, PLRA uses different language than we would normally use the common nexus of facts

[00:22:16] Speaker 02:
the claims that arise from that.

[00:22:18] Speaker 02:
So the argument you're now making to me sounds like a common nucleus of facts argument, not a claim by claim argument.

[00:22:28] Speaker 01:
Yes, Your Honor.

[00:22:29] Speaker 01:
So the language in the PLRA, the fee was directly and reasonably incurred in proving un-actual violation of the plaintiff's rights protected by a statute.

[00:22:40] Speaker 01:
What Judge Windmill assessed

[00:22:43] Speaker 01:
was that all of plaintiff's time, and except one portion, which I want to come back to because that's where he applied Dannenberg faithfully, but all of plaintiff's time in this case contributed towards the violation she proved.

[00:23:01] Speaker 01:
which was denial of necessary treatment.

[00:23:05] Speaker 01:
And regardless of defendants' arguments about these defendants were dismissed, this court, in its opinion in this case, actually declined to reach a legal issue about the standard that should be applied to cries and defendants, because it found that Ms.

[00:23:18] Speaker 01:
Edmo would get all of the relief she needed, even if they were excluded from the injunctive relief.

[00:23:26] Speaker 01:
So this court just declined to,

[00:23:29] Speaker 01:
decide that question, recognizing that she got all the relief.

[00:23:33] Speaker 01:
These were alternative theories.

[00:23:36] Speaker 01:
The defendants were named in order to best pursue Ms.

[00:23:40] Speaker 01:
Admo's single claim for relief and directly answer your Honor's question.

[00:23:45] Speaker 01:
Cabrales v. County of Los Angeles, from this circuit, in 1991,

[00:23:52] Speaker 01:
analyzes under the Hensley standard something that is very akin to the kind of language the PLRA used, which is directly and reasonably incurred in proving an actual violation.

[00:24:03] Speaker 01:
The court in Cabrales observed, even if a specific claim fails, the time spent on that claim may be compensable in full or in part

[00:24:13] Speaker 01:
if it contributes to the success of other claims.

[00:24:17] Speaker 01:
Rare indeed is the litigant who doesn't lose some skirmishes on the way to winning the war.

[00:24:23] Speaker 01:
The county would have a scalpel out attorney's fees for every setback, no matter how temporary, regardless of its relationship to the ultimate disposition of the case.

[00:24:32] Speaker 01:
This makes little sense.

[00:24:34] Speaker 01:
Judge Windmill, mirroring that language, wrote in his decision,

[00:24:39] Speaker 01:
Ms.

[00:24:39] Speaker 01:
Edmo won the war by obtaining and defending an injunction ordering defendants to provide her with the medical treatment she sought.

[00:24:48] Speaker 01:
Her attorney's efforts advancing alternative legal theories in the Second Amendment and motion for injunction were directly and reasonably related to Ms.

[00:24:57] Speaker 01:
Edmo's ultimate victory.

[00:25:00] Speaker 01:
Judge Windmill used the exact language of the PLRA to make this finding.

[00:25:06] Speaker 01:
That factual finding is entitled to deference from this court.

[00:25:13] Speaker 01:
I also want to point out that defendants actually haven't pointed to, nor did they in the district court, a single time entry

[00:25:21] Speaker 01:
They contend that the district court awarded to plaintiff for fees that they think is wholly unrelated or falls short of the PLRA standard for relation to plaintiff's successful claim.

[00:25:36] Speaker 04:
Judge, would you?

[00:25:36] Speaker 04:
Let me ask you a question on that point.

[00:25:40] Speaker 04:
If this court determines

[00:25:44] Speaker 04:
that the lodestar calculation was incorrect here.

[00:25:49] Speaker 04:
And if we are concluding that we should remand to the district court to assess that, to make a new calculation of the lodestar, do you agree that we wouldn't be able to set a percentage figure for enhancement ourselves now?

[00:26:15] Speaker 01:
for enhancement.

[00:26:17] Speaker 01:
Yes.

[00:26:19] Speaker 01:
I believe that this court, based on the evidence in the record, plaintiffs submitted evidence for this district court, I mean for this appellate court, to make an enhancement decision.

[00:26:30] Speaker 01:
Plaintiffs submitted evidence of the local Boise rates.

[00:26:33] Speaker 01:
Plaintiffs submitted evidence of their own rates.

[00:26:38] Speaker 01:
And Judge Windmill pointed to this evidence as the basis for his decision.

[00:26:43] Speaker 01:
So I think this appellate court,

[00:26:44] Speaker 01:
could fairly look at that evidence and either decide that Judge Windmill's decision was correct or change it.

[00:26:52] Speaker 01:
However, again, these are fact-bound determinations that are entitled to deference.

[00:26:57] Speaker 01:
Just because this court, if it were deciding the issue anew, might come to a different decision doesn't mean

[00:27:05] Speaker 01:
that it's error.

[00:27:06] Speaker 01:
It's only error if there is no conceivable factual basis in the record or if it's clearly erroneous that the judge came to this decision.

[00:27:14] Speaker 01:
And I want to point out a really key thing here.

[00:27:17] Speaker 01:
Judge Windmill eliminated 154 hours.

[00:27:21] Speaker 01:
for the claims that were litigated after Plenif obtained the injunction and the mediation and the settlement.

[00:27:31] Speaker 01:
So the time that Plenif's counsel spent on claims other than that forming the basis for the injunctive relief and enforcing the relief.

[00:27:39] Speaker 01:
Judge Windmull already applied Dannenberg and subtracted that time.

[00:27:43] Speaker 01:
Defendants, they've got the burden here.

[00:27:45] Speaker 01:
They had the burden in the district court, once we made our showing, and they have the burden here.

[00:27:49] Speaker 01:
They have not pointed.

[00:27:51] Speaker 01:
to a single time entry, which Judge Windmill did not already subtract.

[00:27:58] Speaker 01:
And they have argued here, in their reply brief is full of it, language like plaintiffs have not proven, plaintiffs have not established.

[00:28:06] Speaker 01:
This gets the standard on appeal exactly wrong.

[00:28:12] Speaker 01:
Judge Windmill's decision is entitled to deference.

[00:28:16] Speaker 01:
Defendants bear the burden, and all they've done

[00:28:20] Speaker 01:
in shifting arguments are making general objections, generalized objections.

[00:28:27] Speaker 01:
They didn't put forth any evidence or any specifics on which this court could look and say will make a different determination.

[00:28:35] Speaker 01:
And that's their burden.

[00:28:37] Speaker 01:
Regarding Your Honor's previous question to my counsel about what the standard is,

[00:28:42] Speaker 01:
The cases are very clear that the standard for an enhancement, including those cited by my counsel, is the prevailing market rate, not whatever is sufficient to attract competent counsel.

[00:28:57] Speaker 01:
In Purdue,

[00:28:59] Speaker 01:
At 554 to 555, an enhancement may be appropriate where the method used in determining the hourly rate employed by the load star calculation does not adequately measure the attorney's true market value as demonstrated in part during the litigation.

[00:29:17] Speaker 01:
in Gates v. Deutmeiden, the Ninth Circuit case, at 14.05.

[00:29:23] Speaker 01:
Reasonable fees under section 1988 are calculated according to the prevailing market rates in the relevant legal community.

[00:29:32] Speaker 01:
And the general rule is that the rates of attorneys practicing in the forum district are used.

[00:29:37] Speaker 01:
I don't know how judges could make up, nor have defendants provided any evidence to suggest, a number to attract competent counsel.

[00:29:46] Speaker 01:
That is the reason for 1988.

[00:29:48] Speaker 01:
That is the justification for awarding plaintiff's counsel in civil rights cases.

[00:29:54] Speaker 01:
Their full market fees is to attract competent counsel because the Supreme Court recognized that Congress left it up to the private bar to enforce civil rights of plaintiffs.

[00:30:08] Speaker 01:
In order for the private bar to be able to carry that burden, especially in a contingency fee situation,

[00:30:16] Speaker 01:
We need to be able to recover our fees.

[00:30:18] Speaker 01:
And we shouldn't be entitled to recover our fees at a reasonable rate.

[00:30:23] Speaker 01:
This court has already decided the PLRA doesn't get in the way of that.

[00:30:29] Speaker 01:
What do you mean by that?

[00:30:31] Speaker 01:
I mean that under Kelly and Parsons, this court has already established that the PLRA limits the lodestar hourly rate that can be used.

[00:30:42] Speaker 01:
It places a cap on that.

[00:30:43] Speaker 01:
But it is silent into enhancement.

[00:30:46] Speaker 01:
And the court's reasoning in Kelly and Parsons was very clear.

[00:30:49] Speaker 01:
The Congress knows how to do that, and in fact did that in other parts of the PLRA.

[00:30:53] Speaker 01:
But it didn't do that here.

[00:30:55] Speaker 01:
And so that's controlling law in this circuit.

[00:30:59] Speaker 01:
I do want to point out that defendants did not challenge Judge Windmill's finding on time limitations as an independent justification for the multiplier.

[00:31:08] Speaker 01:
They didn't put any evidence number on care factor five, the customary fee, that the PLRA rate undervalues attorney's true market value.

[00:31:23] Speaker 01:
Again, they didn't

[00:31:26] Speaker 01:
They didn't point to any evidence in their argument just now.

[00:31:29] Speaker 01:
They also didn't point to any evidence on which basis they say that the multiplier was inappropriate for the market value.

[00:31:39] Speaker 04:
Let me ask you a question.

[00:31:57] Speaker 04:
So my question.

[00:32:05] Speaker 04:
Yeah, thanks.

[00:32:07] Speaker 04:
My question is this.

[00:32:14] Speaker 04:
We have general principle of enhancing fees for civil rights plaintiffs.

[00:32:22] Speaker 04:
But is there something different about the PLRA?

[00:32:29] Speaker 04:
Could Congress have not wanted fees enhanced on prisoner litigation?

[00:32:41] Speaker 01:
Your honor, I think it's a valid question that this court has already decided in Kelly, which was Kelly analyzed the history of the PLRA, analyzed the context of other provisions in the PLRA, and concluded that Congress, if it wanted to do that, knew how to do that.

[00:32:58] Speaker 01:
And this is also supported by Purdue, which was decided by the Supreme Court in 2010 after

[00:33:07] Speaker 01:
well after the enactment of the PLRA.

[00:33:10] Speaker 01:
Purdue said, we reject any contention that a fee determined by the lodestar method may not be enhanced in any situation.

[00:33:19] Speaker 01:
The lodestar method was never intended to be conclusive in all circumstances.

[00:33:23] Speaker 01:
That's 14 years after the PLRA was enacted.

[00:33:27] Speaker 01:
And this court's decisions in Kelly and again in Parsons were consistent with that.

[00:33:30] Speaker 01:
And I'll point out that the Parsons decision, which is a more recent decision, appellants petitioned for certiorari review on this exact issue.

[00:33:40] Speaker 01:
And the Supreme Court declined to review that case.

[00:33:45] Speaker 01:
And so this is a recent decision that is good law in this court.

[00:33:51] Speaker 01:
And the reason is the same.

[00:33:53] Speaker 01:
It's the reason for an enhancement, and yes, as my colleague said, the enhancement doesn't happen in all circumstances.

[00:34:00] Speaker 01:
This is not a case where if the enhancement is upheld here, that somehow means that all civil rights plaintiffs, all prisoner cases will get an enhancement.

[00:34:10] Speaker 01:
Your honors are very familiar with this history, but just to remind you, defendants battled this case at every level.

[00:34:16] Speaker 01:
They filed three separate appeals, they petitioned for rehearing on Bonk,

[00:34:20] Speaker 01:
They petitioned for review to the Supreme Court.

[00:34:22] Speaker 01:
They asked the Supreme Court for a stay.

[00:34:24] Speaker 01:
They filed a suggestion of mootness.

[00:34:27] Speaker 01:
It would belie the record to say that this was not an extremely unusual case, an extraordinary case, that, in fact, defendants' own decisions made it so that the litigation amounted to the hours that it did, instead of just providing Ms.

[00:34:43] Speaker 01:
Edmoe the treatment to which she was entitled under the Constitution.

[00:34:47] Speaker 04:
OK, well, thank you for your argument.

[00:34:51] Speaker 04:
If you need an extra couple of minutes, I'll let you have it because we're giving extra time to your colleague on the other side of the case.

[00:35:02] Speaker 01:
Thank you, Your Honor.

[00:35:04] Speaker 01:
Are there any additional questions that the court has?

[00:35:07] Speaker 03:
No, thank you.

[00:35:08] Speaker 04:
I have no questions.

[00:35:11] Speaker 04:
Does McEwen have any questions?

[00:35:14] Speaker 04:
No questions here, so thank you.

[00:35:16] Speaker 01:
Thank you, Your Honors.

[00:35:26] Speaker 00:
There are three quick points in rebuttal.

[00:35:29] Speaker 00:
First, plaintiff's counsel.

[00:35:40] Speaker 00:
Plaintiff's Council emphasized that the defendants have not rebutted or taken issue with specific time entries, as though it were the defendant's burden to prove what must be excluded in the record.

[00:35:55] Speaker 00:
That is not how this works.

[00:35:57] Speaker 00:
It is the plaintiff's burden to demonstrate the reasonableness of the fee in the first instance.

[00:36:01] Speaker 00:
And the reasonableness of the fee must take account of

[00:36:05] Speaker 00:
These incurred litigating failed claims and so here it's undisputed I didn't hear plaintiff dispute that judge windmill did not take account of fees incurred litigating failed claims before the preliminary injunction that turned into a permanent injunction now 154 our point I don't think that helps plaintiff at all I think that demonstrates exactly what the district court did wrong here

[00:36:29] Speaker 00:
It recognized that following the permanent injunction, these related to those claims were not directly and reasonably incurred.

[00:36:36] Speaker 00:
That, there's no coherent basis for not concluding the same on the front end before the preliminary injunction.

[00:36:44] Speaker 00:
If they weren't directly and reasonably incurred after the permanent injunction, neither were they before.

[00:36:51] Speaker 02:
When you say he didn't take into account, he has a whole section of his opinion called

[00:36:59] Speaker 02:
Time spent on unsuccessful claims.

[00:37:03] Speaker 02:
What do you take issue with in that recitation?

[00:37:07] Speaker 00:
The conclusion where he says he refuses to reduce the amount for time spent on successful claims.

[00:37:12] Speaker 00:
Judge Windmill is not hiding the ball at all.

[00:37:14] Speaker 00:
He says he's not going to account for it because they were so interwoven.

[00:37:18] Speaker 02:
Because they're intertwined.

[00:37:19] Speaker 00:
Exactly.

[00:37:20] Speaker 00:
Exactly, Your Honor.

[00:37:24] Speaker 00:
Plaintiff also said, plaintiff's counsel said that plaintiff got all the relief that was sought.

[00:37:28] Speaker 00:
That's not true.

[00:37:29] Speaker 00:
Plaintiffs sought monetary damage.

[00:37:31] Speaker 00:
Plaintiffs sought punitive damages.

[00:37:34] Speaker 00:
Plaintiffs did not get either.

[00:37:36] Speaker 00:
They did not get all of the reliefs sought here.

[00:37:39] Speaker 00:
On the enhancement, and this is important because the Purdue case is a 1988 case.

[00:37:44] Speaker 00:
And in Purdue, you've got a majority, a concurring, and a concurring opinion that are all emphasizing how rare and exceptional the circumstances must be under 1988 for fees to be enhanced.

[00:37:58] Speaker 00:
In the PLRA, I submit it is all the rarer and all the more exceptional.

[00:38:02] Speaker 00:
And the reason is because of that 150% cap.

[00:38:05] Speaker 02:
Now, I agree that the...

[00:38:10] Speaker 00:
that the PLRA heightens the enhancement.

[00:38:15] Speaker 00:
I do not, because as far as I found, Judge McCown, there are no circuit court decisions other than Kelly dealing with an enhancement under the PLRA that was sustained.

[00:38:25] Speaker 00:
Kelly is the only circuit court precedent in the country that sustained an enhancement.

[00:38:30] Speaker 00:
Every Supreme Court under the PLRA

[00:38:32] Speaker 00:
Every Supreme Court decision under Section 1988 to deal with enhancements has struck them down.

[00:38:38] Speaker 00:
Parsons, the only other Supreme Court decision I could find dealing with enhancements under the PLRA or Court of Appeals decision rather, struck it down on the double counting issue.

[00:38:47] Speaker 00:
And I do want to touch on that very briefly.

[00:38:49] Speaker 02:
I'm sorry, the last case you mentioned in which they struck down the enhancement was which one?

[00:38:54] Speaker 00:
was this court's decision in Parsons, and it did so on double counting grounds.

[00:38:58] Speaker 00:
I'm going over, Your Honor.

[00:38:59] Speaker 00:
I would be happy to finish that point if you'd like, but it's briefed, and I'm sure the court can... Well, I think you should finish answering the question.

[00:39:09] Speaker 00:
On double counting, Your Honor, Parsons had a very straightforward analysis.

[00:39:14] Speaker 00:
It looked at Purdue, which said that most, if not all, of the care factors

[00:39:19] Speaker 00:
are subsumed within the lodestar.

[00:39:22] Speaker 00:
Because the district court in Parsons counted multiple curve factors for enhancement purposes that were already subsumed, it necessarily undercut the viability of the fee award.

[00:39:35] Speaker 00:
That happened here.

[00:39:36] Speaker 00:
Judge Windmill looked at the Morales decision of this court and said that based on footnote 10, there were seven curve factors that were not subsumed.

[00:39:45] Speaker 00:
That is not a good reading of Morales' footnote 10.

[00:39:48] Speaker 00:
Morales' footnote 10 sets out affirmative curve factors that are subsumed, and the ones it doesn't mention, it is silent on.

[00:39:54] Speaker 00:
And it cannot be assumed that those are necessarily not assumed.

[00:39:57] Speaker 00:
But that is what Judge Windmill found.

[00:39:59] Speaker 00:
And that is an error of law that should be vacated.

[00:40:02] Speaker 00:
Thank you, Your Honors.

[00:40:03] Speaker 00:
Thank you.

[00:40:03] Speaker 00:
Thanks, Counsel.

[00:40:07] Speaker 04:
I want to congratulate Counselor

[00:40:11] Speaker 04:
both sides of this challenging case for excellent arguments.

[00:40:15] Speaker 04:
And the panel will now submit the case.

[00:40:20] Speaker 04:
And with our thanks, we advise the advocates that you will hear from us in due course.

[00:40:32] Speaker 04:
Thank you.