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McGuire v. Marshall

United States District Court, M.D. Alabama, Northern Division

January 5, 2018

KEVIN J. MURPHY, et al.,[1] Defendants.



         Before the court is Plaintiff's motion for reconsideration (Doc. # 361), which is construed as containing a motion for an interim award of attorney's fees and costs. Also pending before the court is Defendant Stephen T. Marshall's motion (Doc. # 363) to summarily deny Plaintiff's motion for reconsideration and for attorney's fees. Plaintiff's motion for reconsideration is due to be granted, Plaintiff's motion for an interim award of attorney's fees and costs is due to be granted in part and denied in part, and Defendant Marshall's motion is due to be denied.


         On December 11, 2011, Plaintiff filed this lawsuit challenging a number of the provisions of the Alabama Sex Offender Registration and Community Notification Act (“ASORCNA”), Ala. Code 1975 § 15-20A-1 et seq. On February 5, 2015, after protracted litigation, a four-day trial, and a necessary period for consideration of arguments raised in numerous post-trial briefs, [2] the court entered final judgment, which granted Plaintiff relief on two of his claims. (Doc. # 284.) Specifically, the court entered the following judgment:

In accordance with the prior proceedings, opinions, and orders of the court, it is ORDERED, ADJUDGED, and DECLARED that the Alabama Sex Offender Registration and Community Notification Act, Ala. Code § 15-20A-1 et seq., is unconstitutional under the Ex Post Facto Clause of the United States Constitution to the extent that it requires (1) in-town homeless registrants to register (or check-in) on a weekly basis with two separate law-enforcement jurisdictions as provided by Alabama Code § 15-20A-12(b) in conjunction with § 15-20A-4(13) and (2) all in-town registrants to complete travel permit applications with two separate law-enforcement jurisdictions as provided by Alabama Code § 15-20A-15 in conjunction with § 15-20A-4(13).

(Doc. # 284.)

         On February 18, 2015, Plaintiff filed a motion for attorney's fees and costs pursuant to 42 U.S.C. § 1988, which allows prevailing civil rights plaintiffs to recover reasonable costs and fees. (Doc. # 285.) Plaintiff sought $1, 919, 098.00 in attorney's fees and $69, 106.36 in costs. (Doc. # 345.) Defendants opposed Plaintiff's motion, arguing that Plaintiff was not entitled to any award of fees and costs because Plaintiff was not the prevailing party. (Doc. # 334.) Alternatively, Defendants contended that any award of fees and costs should be limited because Plaintiff claimed unreasonably excessive hourly rates for an unreasonably excessive number of hours worked, the majority of items for which Plaintiff sought to recover costs were unreasonable or ineligible under §1988, and Plaintiff obtained only limited relief. (Doc. # 334.)

         Before briefing was completed on the motion for attorney's fees and costs, Plaintiff filed a notice of appeal (Doc. # 287) on March 16, 2015, and Defendants John Richardson, Luther Strange, Derrick Cunningham, [3] and the Montgomery County Sheriff's Department cross-appealed. (Doc. # 305; Doc. # 310; Doc. # 316.)

         On August 27, 2015, the court ordered that, “[t]o efficiently manage this case, avoid piecemeal adjudication of issues pertaining to attorney's fees and costs, and conserve judicial resources, . . . justice would be best served by denying [Plaintiff's] motion for attorney's fees without prejudice and with leave to re-file the motion after the conclusion of the appeal.” (Doc. # 350 at 2.) Accordingly, the court exercised its discretion to deny Plaintiff's motion for attorney's fees without prejudice and with leave to file a new motion for attorney's fees after the Court of Appeals entered a mandate on the pending appeal.

         On March 18, 2015, Alabama House Bill No. 316 was introduced. Among other revisions to ASORCNA, the bill sought to remove the two double-registration requirements from which this court's February 5, 2015 Order granted Plaintiff relief. On June 11, 2015, the bill was passed into law, and it became effective on September 1, 2015. 2015 Alabama Laws Act 463 (“H.B. 316”).

         Nearly three years after Plaintiff filed his notice of appeal, and over two years after the court denied Plaintiff's motion for attorney's fees and costs with leave to refile after issuance of a mandate, the appeal remains pending.

         II. ANALYSIS

         A. Motion for Reconsideration

         Before deciding the merits of Plaintiff's motion for interim fees and costs, the court must decide whether Plaintiff has demonstrated good cause to reconsider the August 27, 2015 Order prior to issuance of the mandate. The Federal Rules of Civil Procedure do not specify the grounds available for motions for reconsideration of non-final orders, and resolution of such motions is within the court's discretion. Region 8 Forest Serv. Timber Purchasers Council v. Alcock, 993 F.2d 800, 806 (11th Cir. 1993); see Fed. R. Civ. P 54(b) (providing merely that nonfinal orders “may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties' rights and liabilities”). To ensure efficient judicial administration, this court generally does not entertain motions for reconsideration on grounds that were raised previously or that could have been timely raised before issuance of the order from which relief is sought. However, the court may grant relief from a nonfinal order upon a showing of good cause, such as a change in circumstances justifying relief, an intervening change in the law, a clear error on the part of the court, circumstances similar to those justifying relief from final judgments under Rules 59(e) or 60 of the Federal Rules of Civil Procedure, or other reasons demonstrating that relief is necessary to rectify clear error, prevent injustice, or ensure the efficient disposition of the case. Cf. Pres. Endangered Areas of Cobb's History, Inc. v. U.S. Army Corps of Eng'rs, 916 F.Supp. 1557, 1560 (N.D.Ga. 1995) (describing the standard of review on motions for reconsideration under that court's local rules).

         This case presents complex and difficult issues that affect the validity of state laws regarding sex offender community notification requirements. Thus, its resolution reasonably requires more time than necessary in ordinary cases. However, when the court entered its August 27, 2015 Order directing Plaintiff to refile the motion for attorney's fees and costs after entry of the mandate, the court did not anticipate[4] that, nearly three years[5] after entry of final judgment, the mandate still would be outstanding.

         It is now apparent that the protracted resolution of the appeal, however necessary for that court's full consideration of the issues, creates financial hardships the court did not anticipate when it issued the August 27, 2015 Order. (Doc. # 350.) Specifically, the significant financial hardships Plaintiff's counsel faces while waiting for a resolution of the appeal are precisely the kind (1) that the fee-shifting provision of 42 U.S.C. § 1988 is intended to redress, and (2) that often justify an interim award of fees and costs.

         Awards of costs and fees under § 1988 exist to enable plaintiffs with meritorious claims to attract competent counsel in cases such as this one-cases that benefit the public by securing compliance with constitutional law, but that do not promise much in the way of a monetary damages award. Requiring counsel to wait years between entry of final judgment and a fee award fundamentally undermines the purpose of § 1988 by making representation in civil rights cases financially untenable and by discouraging members of the bar from undertaking similar cases in the future. However, the availability of interim fee awards can further the purposes of § 1988 by enabling civil rights attorneys to undertake representation when litigation is likely to be protracted in difficult and complex cases that require significant investment of time and resources. See Hensley v. Eckerhart, 461 U.S. 424, 429-30 & n.4 (1983) (recognizing Congress's intent that reasonable attorneys' fees available under § 1988 should ensure effective access to justice and enable prospective plaintiffs to attract competent counsel); Fox v. Vice, 563 U.S. 826, 833 (2011) (recognizing that prevailing civil rights plaintiffs ordinarily are entitled to a fee award under § 1988 because they serve as “private attorneys general” who vindicate policies that “Congress has considered of the highest priority”); James v. Stockham Valves & Fittings Co., 559 F.2d 310, 358-59 (5th Cir. 1977)[6] (“There is a danger that litigants will be discouraged from bringing [civil rights] suits because of the risks of protracted litigation and the extended financial drain represented by such a risk. An award of interim attorneys' fees will prevent extreme cash-flow problems for plaintiffs and their attorneys.”).

         Further, effective September 1, 2015 (after the judgment was entered and after the court denied Plaintiff's initial fee petition), Alabama revised its law, removing the dual registration requirements that the court already had ruled were unconstitutional. Alabama thereby ensured that the ruling would be enforced, and that future developments on appeal will not deprive Plaintiff of the relief afforded by this court's judgment.[7] Cf. Richardson v. Penfold, 900 F.2d 116, 119 (7th Cir. 1990) (Posner, J.) (“Once a plaintiff obtains substantive relief that is not defeasible by further proceedings, he can seek interim fees and the district court has the power to award them.”).

         Therefore, the court finds that the previously unanticipated delay in the resolution of the appeal and the mootness of Defendants' cross-appeal present new and compelling reasons to grant relief from the August 27, 2015 Order by allowing Plaintiff to move for a reasonable interim award of fees and/or costs.

         B. Motion for Interim Award of Fees and Costs

         1. Prevailing Party Status

         To ensure that § 1988 is a meaningful tool for providing civil rights plaintiffs with effective access to the judicial process, prevailing civil rights plaintiffs are ordinarily entitled to recover an attorney's fees except when “special circumstances would render such an award unjust.” Hensley, 461 U.S. at 429. To qualify as a prevailing plaintiff under § 1988, the plaintiff must meet a “generous” test: the plaintiff must “succeed on any significant issue in litigation which achieves some of the benefit . . . sought in bringing suit” by means of a judgment (or other similar judicially sanctioned relief, e.g., a consent decree) that (1) provides relief on the merits of the plaintiff's claim and (2) “materially alters the legal relationship of the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff” at the time of the judgment. Farrar v. Hobby, 506 U.S. 103, 109 (1992) (citations and internal quotation marks omitted).

         In some circumstances, a plaintiff may obtain a judgment that technically provides relief on the merits, but that does not materially alter the conduct of the defendant for the plaintiff's benefit.[8] In those cases, the plaintiff's technical victory is not sufficient to confer prevailing party status on the plaintiff. Farrar, 506 U.S. at 113. In other cases, the judgment alters the legal relationship of the parties for the plaintiff's benefit, but the magnitude of the relief obtained is nevertheless of such a technical or de minimis nature that the only reasonable fee amount “is no fee at all.”[9] Id. at 114-15; see also Tex. State Teachers Ass'n v. Garland, 489 U.S. 782, 792-93 (1989) (holding that, when a judgment satisfies the prevailing party requirements by materially altering the legal relationship of the parties in a manner that benefits the plaintiff, the degree of the plaintiff's overall success goes to the reasonableness of the fee award).

         In opposing Plaintiff's original motion for attorney's fees, Defendants argued that, because Plaintiff ceased registering as homeless on December 29, 2014, he received no direct benefit from the February 5, 2015 declaratory judgment holding unconstitutional ASORCNA's requirement that in-town homeless registrants must register on a weekly basis with two separate law-enforcement jurisdictions. (Doc. # 334 at 9.) It is true that, when a judgment is moot at the time it is rendered, the judgment does not alter the parties' legal relationship in a manner that confers prevailing party status. For example, in Rhodes v. Stewart, 488 U.S. 1 (1988), at the time the district court entered an order ruling that prison officials failed to apply proper constitutional standards to two prisoner's requests to subscribe to magazines, the court was apparently unaware that the plaintiffs were no longer in state custody. 488 U.S. at 3. One of the plaintiffs had passed away prior to the judgment, and the other had been released. Id. Because the case was moot before judgment was entered, the plaintiffs were not prevailing parties because “the judgment . . . afforded the plaintiffs no relief whatsoever.” Id. at 4.

         In this case, however, Plaintiff's challenge to the double-registration requirement for homeless sex offenders was not moot at the time judgment was rendered. Because of that provision, Plaintiff was required, whenever he was homeless, to register quarterly and weekly with both the Montgomery County Sherriff's Office and the Montgomery Police Department, which were five miles apart.[10] (Doc. # 283 at 11.) When Plaintiff ceased registering as homeless two months prior to the entry of judgment, Plaintiff was not free of a reasonable probability of becoming homeless-and of facing the double registration requirement-again.[11]

         Therefore, as a sex offender who was permanently subject to ASORCNA's registration requirements and who faced a real threat of future homelessness, Plaintiff had a legal relationship with Defendants that, but for the judgment altering that relationship to his benefit, was reasonably likely to have subjected him to the double registration requirements for homeless sex offenders. See United States v. Sec'y, Florida Dep't of Corr., 778 F.3d 1223, 1229 (11th Cir. 2015) (recognizing an exception to the mootness doctrine for disputes when “(1) there [is] a reasonable expectation or a demonstrated probability that the same controversy will recur involving the same complaining party, and (2) the challenged action is in its duration too short to be fully litigated prior to its cessation or expiration” (internal quotation marks and citations omitted)). Cf. Virdi v. Dekalb Co. Sch. Dist., 216 F. App'x 867, 871-72 (2007) (holding that a plaintiff who obtains injunctive relief may be entitled to attorney's fees if the plaintiff continues to have or ...

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