This summary also appears under Civil Rights


Issues: "Reasonable attorney fees" for plaintiffs in a civil rights action; 42 USC § 1988; Hensley v. Eckerhart; Reed v. Rhodes; Adcock-Ladd v. Secretary of Treasury; Webb v. Dyer Cnty. Bd. of Educ.; Johnson v. Georgia Hwy. Express, Inc. (5th Cir.); The plaintiffs' "ability to pay"; Democratic Party of WA State v. Reed (9th Cir.); Blanchard v. Bergeron; Whether the "taxpayers" should have been considered; Rum Creek Coal Sales, Inc. v. Caperton (4th Cir.); Copeland v. Marshall (DC Cir.); American Booksellers Ass'n, Inc. v. Virginia (4th Cir.); Reassignment on remand; 28 USC § 2106; Rorrer v. City of Stow; U.S. ex rel. Williams v. Renal Care Group, Inc.; Gekas v. Attorney Registration & Disciplinary Comm'n of the Supreme Court of IL (7th Cir.)

Court: U.S. Court of Appeals Sixth Circuit

Case Name: Lavin v. Husted

e-Journal Number: 58011

Judge(s): Gibbons, Siler, and Gilman


The court vacated the district court's § 1988 attorney fee award in this case challenging an Ohio election law, and remanded for recalculation by a different judge. Plaintiffs-doctors and Medicaid providers sued defendant-Ohio Secretary of State over a state election law prohibiting them from making certain campaign contributions. The court previously reversed the district court's orders upholding the law. On remand, the district court rejected plaintiffs' $665,645.68 request and "awarded only $128,908.74 in fees and $6,315.00 in costs" - 70% less than the magistrate judge's recommendation and 80% less than plaintiffs' original request. It also "drastically cut hourly rates, struck additional hours spent on third-party discovery and other miscellaneous matters, and reduced appellate hours" by 50%. After arriving at its lodestar calculation, the district court further reduced the fees by 35% under the Johnson factors. The plaintiffs appealed and requested reassignment to a different judge. The court agreed with the plaintiffs that some of the district court's determinations were "wrong." Although the court declined to review each item individually, it noted the district court "repeatedly expressed a preference for awarding fees 'on behalf of plaintiffs who could not otherwise afford to pay an attorney,' but against fees for the plaintiffs here, who were 'presumably abundantly capable of paying for representation.' A plaintiff's ability to pay his or her attorney, however, is irrelevant to the fee inquiry. Section 1988 does not provide - or even express a preference - for 'plaintiffs who could not otherwise afford to pay an attorney.'" Also, the district court's repeated consideration of the taxpayers' "burden" was "'an improper ground for denying or reducing an attorney's fee.'" Thus, "[g]iven the drastic cut in fees and the pervasiveness of the views, it is apparent that the district court was significantly motivated by these improper considerations. It is also possible that these impermissible considerations caused the district court to weigh permissible factors improperly, placing excessive weight on factors that favored a lesser fee award while minimizing or even ignoring factors that favored a higher award." As the district court "abused its discretion, plaintiffs are entitled to a new calculation." The court reassigned the case on remand because the "district court's opinion reflect[ed] a distinct hostility toward the plaintiffs because they were wealthy doctors challenging a thirty-year-old campaign finance law. This language - repeated over and over in the opinion - create[d] the appearance that the district court was biased against plaintiffs."


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