Justices Frown on Bonuses for Public Interest Lawyers

      In the world of high finance, top executives can walk away with seven- and eight-figure bonuses even after flushing their firms down the toilet. (Think, Bear Stearns; Lehman) But under a new Supreme Court decision, public interest lawyers who succeed in hard-fought federal civil rights suits are exceedingly unlikely to see any bonuses in the fee awards permitted under the law.
      The Supreme Court’s 5-4 decision last week in Perdue v. Kenny A. [April 21] threw out a $10.5 million fee award for a group of public interest and private attorneys for work over an eight-year period in a suit that succeeded in overhauling Georgia’s dangerous and dysfunctional foster care system. Lawyers in the case still stand to get at least $6 million for the nearly 30,000 hours spent investigating and litigating the suit. But the ruling represents a setback for lawyers who take on difficult institutional reform litigation with no assurance of eventual reimbursement and ultimately prevail, but only in the face of years of dogged resistance from government lawyers.
      In Kenny A., lawyers from the New York City-based group Children’s Rights teamed with attorneys from the Atlanta firm Bondurant, Mixson & Elmore in filing suit in 2002 on behalf of a class of 3,000 abused or neglected children in Georgia’s foster care system. Three years later, the suit resulted in a mediated consent decree requiring extensive reforms in foster care in two metropolitan Atlanta counties, Fulton and DeKalb.
      With the decree signed, the plaintiffs’ lawyers applied for attorneys’ fees, as permitted under federal civil rights laws. They asked for $14 million. Half of the amount was based on hours billed at prevailing rates in the Atlanta area. The other half was an enhancement based on superior work and results.
      Lawyers for the state, who had fought the case with every possible pretrial motion and dilatory tactic, objected to the proposed fee. After scrutinizing the fee application, Senior U.S. District Court Judge Marvin Shoob trimmed the basic amount to $6 million, but added a 75 percent enhancement based on, among other factors, the “extraordinary results” achieved. Shoob added that the lawyers had shown “a higher degree of skill commitment, dedication, and professionalism” than he had seen in attorneys in any previous case in his 27 years on the bench.
      That was not enough for the Supreme Court’s conservatives, who decided that Shoob had gone overboard in approving a 75 percent enhancement. For the majority, Justice Samuel A. Alito Jr. sneered at the fee award as a “windfall” for the lawyers.
      The decision marked the Court’s most extended discussion of when, if ever, a fee award can be increased because of exceptional performance or difficulties. In 2002, the Court endorsed an approach to fee awards developed in lower federal courts known as the “lodestar method.” That approach calls on federal judges to apply the prevailing rates for legal services in the area — the “lodestar” — to the billable hours documented by the successful lawyers. In passing, the Court indicated that enhancements might be permitted in extraordinary circumstances.
      The good news for public interest lawyers in the new case is that the Court reaffirmed its in-passing comment. The bad news is that the five-justice majority declared “a strong presumption” that the lodestar amount is sufficient. Lawyers seeking an enhancement, Alito explained, must identify and prove with specificity the factors showing the lodestar fee to be inadequate. Justices Anthony M. Kennedy and Clarence Thomas added brief concurrences to underscore that enhancements would be permitted — in Kennedy’s words — “only in the rarest circumstances.”
      Writing for the four liberal dissenters, Justice Stephen G. Breyer detailed both the difficulties in the case and the importance of the result in arguing for upholding the fee award. Evidence in the case filled 20 large boxes, Breyer said, and the record covered 18,000 pages. The suit documented unsanitary and unsafe conditions in foster care shelters and inadequate medical and mental health services. Children were at risk of assault or sexual abuse by other children or even by staff.
      The state’s Office of the Child Advocate had complained about the problems, but to no avail until the civil rights suit, Breyer noted. “If this is not an exceptional case,” he concluded, “what is?”
      In his opinion, Alito noted that attorneys’ fees in civil rights cases against government agencies are often paid for, in effect, by state and local taxpayers. The money used to pay the fees, he complained, “is money that cannot be used for programs that provide vital public services.” Tellingly, Alito expressed no concern about the money that the state spent litigating the case, including $2.4 million on outside counsel.
      Marcia Robinson Lowry, executive director of Children’s Rights, voiced confidence afterward that the lawyers will be able to justify an enhanced fee when the case returns to lower federal courts. Perhaps. But Carl Tobias, a professor at the University of Richmond Law School, aptly observed that the ruling makes any bonuses in civil rights cases far less likely in the future. “The whole mood and tone of the opinion,” Tobias told the Atlanta Journal-Constitution, “is that it’s going to have to be an extraordinary situation.”

Net Neutrality: Trusting the Phone Company and Cable Guy

      The wages of the Bush administration’s deregulatory sins, which ran up to hundreds of billions in the financial services meltdown, may soon take a toll on the nation’s high-speed Internet customers. The big telephone and cable companies offering broadband services are now free to play favorites among content-providers — to the potential detriment of customers — unless policy decisions made by the Bush-era Federal Communications Commission (FCC) are reversed either by the agency or Congress.
      The issue is “net neutrality,” a principle that companies such as Comcast and Verizon and the public interest advocates lined up against them all seem to endorse. Both sides in this high-stakes regulatory debate embrace the ideal of an Internet open to all, free and untrammeled. They differ, however, on who gets to set the rules to translate that principle into reality.
      Public interest groups say they want a neutral Internet, with private companies free to manage broadband access in sensible ways but with enforceable regulations preventing any discrimination between content providers. The big communications companies selling high-speed Internet links for a pretty penny also profess devotion to a wide-open cyberspace, but they want users to trust them and the marketplace to prevent discrimination or preferential treatment for favored providers.
      The FCC sided with the companies in two pivotal decisions in 2002 and 2005 that classified broadband access offered by cable and telephone companies as lightly regulated “information services” instead of “telecommunications services” subject to more extensive regulation. The decisions were led in succession by two Bush-appointed FCC chairmen, Michael Powell and Kevin Martin. Both were ardent deregulators except when it came to protecting the public from “fleeting expletives” on radio or television.
      The FCC decisions essentially freed Internet service providers (ISPs) from the obligations of common carriers — think, telephone companies — to transmit content without playing favorites. In explaining the decision in August 2005, Martin said that consumers want to use broadband Internet services to access any kind of content and companies can succeed only if they meet the customers’ demands.
      Martin saw the broadband Internet market as competitive and destined to become more so. Almost five years later, the marketplace hardly looks competitive, as customers who have ordered cable modems or DSL connections can attest. FCC research cited by the Washington Post’s tech columnist Rob Pegoraro shows that 78 percent of U.S. households have access to only two land-based broadband providers and 13 percent have access to only one.
      Even as it freed telephone and cable companies from regulation, the FCC exhorted them — in a nonbinding policy statement — to observe principles of neutral access to the ’Net. The companies all say they will. In 2007, however, some users of the Bit-Torrent file-sharing service discovered that Comcast was interfering with their use of the peer-to-peer application. Comcast eventually acknowledged as much, claiming a need to manage scarce network capacity in the face of the large amount of bandwidth used by file-sharing programs.
      Two public interest groups, Free Press and Public Knowledge, filed a complaint with the FCC, contending that Comcast’s actions violated the 2005 policy statement. The FCC, now headed by Democratic-appointed chairman Julius Genachowski, agreed that Comcast had “significantly impeded consumers’ ability to access the content and use the applications of their choice.” It further said that Comcast had several options for managing network traffic without discriminating against peer-to-peer communications.
      Comcast took the FCC to court, and earlier this month [April 6] the District of Columbia Circuit Court of Appeals ruled the commission had exceeded its jurisdiction. A three-judge panel that included one liberal and two conservatives unanimously ruled in Comcast v. FCC that the commission could not rely on its policy statement or generally phrased language in congressional statutes to enforce net neutrality on Comcast or other Internet service providers.
      Against this background, the controversy may seem to be nothing more than a dispute between movie downloaders and a company, Comcast, sensibly trying to manage what is ultimately a limited resource. But an Internet service provider freed of neutrality requirements could favor one content provider over another for other reasons — economic, political, or whatever. Favored providers — say, an entertainment network that struck a lucrative deal with the ISP — would be routed onto the high-speed Internet path while others would be stuck in traffic.
      Comcast disclaims any such intent, but the history of the Internet offers no confidence in that promise. Remember when the Internet was going to be ad-free? Look at the clutter now. Remember when Google was a futuristic do-gooding company? Look at the billions it’s making as the dominant gateway to digitized information. Any Internet company that disclaims a profit-maximizing motive needs to be regarded with a generous amount of skepticism.
      The FCC might be able to fix the problem by reclassifying ISPs as “telecommunications services” subject to common carrier obligations, but the ISPs are certain to challenge such a move. Congress could address the problem, but an eye-glazing “technical” issue would stand little chance of engaging lawmakers even if the climate on Capitol Hill were less partisan and the elections were farther away. For now, users have to trust The Phone Company and The Cable Guy to manage the Internet for the benefit of all. Users with complaints can expect to be on hold for a while.

"Learning on the Job": The Evolution of Justice Stevens

      As a federal appeals court judge in Chicago in the 1970s, John Paul Stevens sat on a case challenging political patronage — the long established practice of awarding government jobs on the basis of political affiliation. Stevens initially saw no grounds for a constitutional attack, but after research and argument wrote an opinion finding the practice a violation of First Amendment political rights.
      None of Stevens’ colleagues joined the opinion. But Stevens stayed on the bench long enough to see his view adopted, at least in part, in three Supreme Court decisions.
      Stevens told that story in remarks at a forum in his honor sponsored by Fordham University Law School in 2005. Stevens related the episode to his view of the judicial role. “Learning on the job is essential to the process of judging,” Stevens said.
      Perhaps no justice in history better exemplifies than Stevens the importance, or the impact, of learning on the job. In a 34-year Supreme Court career that will end as the third longest of any justice, Stevens evolved from a centrist Republican and frequent maverick to a leader of the Court’s liberal bloc and an effective coalition-builder in a number of critically important decisions.
      In interviews while weighing his retirement, Stevens discounted the “evolution” theory. He insisted he was and remains a “conservative,” his views largely unchanged as the Court changed around him. His protestations must be taken with several grains of salt.
      Stevens’ record is full of seemingly inconsistent decisions that can be reconciled only with difficulty. He voted in 1978 to strike down the race-based admissions program at the University of California-Davis Law School, but approved a more nuanced racial preference system at the University of Michigan Law School in 2003. In like vein, Stevens voted in 1980 to strike down a federal minority-preference government contracting program but shifted sides to support a more carefully structured program in 1995.
      In one of his first abortion-related cases, Stevens in 1977 helped to uphold a state’s refusal to pay for nontherapeutic abortions for indigent women. Barely three years later, he led four dissenters when the Court approved the Hyde Amendment’s broader federal ban on abortion funding. He went on to become a strong defender of abortion rights, playing a behind-the-scenes role in the final form of the 1992 decision that left Roe v. Wade on the books.
      Stevens wrote the so-called Pacifica decision in 1978 that gave the Federal Communications Commission (FCC) the green light to ban “seven dirty words” on radio and television. Two decades later, he led a nearly unanimous Court in 1997 in overturning Congress’s attempt to ban indecency on the Internet. When the FCC came back before the Court defending its ban on “fleeting expletives,” Stevens voted in 2009 to reject the policy, saying Pacifica never envisioned such sweeping censorship.
      On one issue, however, Stevens acknowledges a change of views: capital punishment. In his first term, Stevens was part of a triumvirate of “centrist” justices — along with Potter Stewart and Lewis F. Powell Jr. — that paved the way in 1976 for the return of capital punishment. The decision in Gregg v. Georgia permitted judges or juries to impose the death penalty under a system of “guided discretion."
      With 32 years’ experience under that system, Stevens concluded in 2008 that the effort to impose the death penalty with complete evenhandedness and assured reliability had failed. The risk of error and the risk of discriminatory application, Stevens wrote in Baze v. Rees, make the costs of capital punishment far greater than benefits he found to be “negligible.” Justice Antonin Scalia wrote separately in the case to mock Stevens’ use of his personal “experience” in reaching that position.
      Without referring to Stevens by name, Justice Clarence Thomas has also mocked what conservatives regard as the tendency of justices to shift to the left over time. “I’m not evolving,” Thomas is said to have promised after his contentious confirmation in 1991. And he has not. The same death penalty cases that caused Stevens to change his stance have left Thomas unmoved; he consistently votes to reject death penalty challenges no matter how strong the evidence of irregularities or injustice.
      Over time, Stevens also learned from experience the ways of wielding influence within the Court’s cloistered walls. As the leader of the Court’s four liberals for the past 15 years, Stevens helped forge five- or six-vote majorities that guaranteed rights for Guantanamo detainees, preserved affirmative action in higher education, barred capital punishment for mentally retarded or juvenile offenders, and protected gay rights in the bedroom and in the political process. He also dissented eloquently when the fortified conservative majority under Chief Justice John G. Roberts Jr. slid around precedents to limit racial diversity in public schools and grant corporations unlimited spending rights in election campaigns.
      In looking for the next justice, President Obama said he would be looking for attributes he identified in Stevens: independence, integrity, and “a fierce dedication to the rule of law.” And the president added one more: “a keen understanding of how the law affects the daily lives of the American people.” For that, the next justice must do what Stevens did himself: learn on the job.

Stevens: A 'Judge's Judge' Weighs Retirement

      Despite Justice John Paul Stevens’ professed indecision, Supreme Court watchers are nearly certain that the 89-year-old jurist is now in the final few months of his remarkable 34-year tenure on the high court. Even if the oddsmakers prove to be wrong, one can reflect now on Stevens’ strengths as a justice: hard work, careful analysis, and judicious decision-making free of ideological cant.
      Stevens touched off the speculation about his possible retirement in the fall by hiring for the next term only one law clerk, the number allowed a retired justice, instead of the normal complement of four. Now, in an unusual round of interviews, Stevens has told the New Yorker, the New York Times, and the Washington Post that he will definitely retire during President Obama’s time in the White House and will decide this month, April, whether to leave at the end of the current term this summer.
      Two weeks from his 90th birthday (April 20), Stevens maintains a regimen of work and exercise that would be challenging for men decades younger. Alone among the nine justices, he writes the first draft of all his opinions. He swims daily and plays singles tennis three times a week, though he conceded to the Times’s Adam Liptak that his game “isn’t quite as good as it used to be.”
      In a term that generally is off to a slow start, Stevens came out last week [March 30 and 31] with his first two majority opinions for the year. Neither one drew much attention, but they exemplify Stevens’ fidelity to the principle that Chief Justice John G. Roberts Jr. laid out in his confirmation hearing: the vision of a judge who only calls balls and strikes and leaves the rules of the game to others.
      In the first of the decisions, Graham County Soil and Water District v. United States ex rel. Wilson, the Court had to construe a somewhat recent amendment to the federal False Claims Act. That Civil War-era law allows private citizens to file so called qui tam suits to recover money the federal government lost because of fraud by government contractors or others. The private citizen shares any proceeds with the government.
      Specifically at issue was a 1986 amendment — known as the public disclosure bar — that generally prohibits qui tam suits based on information already publicly disclosed. In effect, the amendment seeks to limit the potentially lucrative litigation to true “whistleblowers” rather than opportunistic plaintiffs who learn of fraud against the government from an already public source.
      The amendment applies to information already publicized in court proceedings, in the news media, or in “congressional, administrative, or Government Accounting Office [sic]” reports or investigations. The question in the case was whether “administrative” referred only to federal agencies or encompassed investigations by state and local agencies as well.
      The “liberal” position in the case might be thought of as limiting the scope of the provision so as to promote more litigation. Over the dissent of two liberal colleagues, Stevens came out the other way, in a 21-page opinion joined by justices spanning the ideological spectrum. In terms of judicial craftsmanship, the opinion’s strength lies in Stevens’ careful reasoning from a simplistic application of a well-known maxim of statutory construction to a more thoroughgoing analysis of the provision’s terms and Congress’s intent in passing it.
      In his second decision, Padilla v. Kentucky, Stevens spoke for a liberal majority in establishing a new rule that criminal defense attorneys must advise noncitizen clients of the risk of deportation if they plead guilty. Stevens acknowledged that generally lawyers cannot know all the “collateral consequences” of a criminal conviction. But federal immigration law now provides for deportation for a wide range of crimes, including virtually all drug offenses. On that basis, Stevens concluded that the risk of deportation is “an integral part” of the possible penalty for alien. Defense lawyers who fail to address the issue, he said, fall below the standard of “effective assistance of counsel” required by the Sixth Amendment.
      The vote in the case was 7-2, with two of the justices — Roberts and Samuel A. Alito Jr. — concurring in the result but arguing for a narrower ruling. Alito argued that the lawyer in the case made a mistake by telling the defendant he had no reason to worry about his immigration status, but that lawyers had no affirmative obligation to address immigration matters. That approach, Stevens responded, could encourage defense lawyers to keep their clients in the dark even if the risk of deportation was crystal-clear.
      In dissent, Justice Antonin Scalia argued against establishing a constitutional rule on the subject, specifically warning of the risk of a flood of what he called “Padilla warning” complaints. Stevens answered that criticism by noting the lack of a flood of ineffective-assistance claims since the Court opened the door to such cases a quarter-century ago.
      Neither of those decisions will be listed among Stevens’ major opinions in the news coverage after he retires. But they show him to be a “judge’s judge,” scrupulous in analyzing any issue from all sides. In his telling, Stevens is doing exactly that in weighing a possible retirement. “There are still pros and cons to be considered,” he told Liptak.