United States District Court, M.D. Alabama, Eastern Division
UNITED STATES OF AMERICA, ex rel. BRIAN A. FOLEY, Plaintiffs and Relators,
DR. JOHN W. MITCHELL; THE HEART CENTER CARDIOLOGY, PC, et al., Defendants.
C. LAMBERTH UNITED STATES DISTRICT COURT JUDGE
Motion for Reasonable Expenses, Attorneys' Fees, and
Costs (ECF No. 77) arises out of a 2014 False Claims Act
("FCA") suit that Dr. Brian Foley filed against Dr.
John Mitchell, The Heart Center Cardiology ("THC"),
and East Alabama Medical Center ("EAMC"). The
underlying lawsuit alleged that Dr. Mitchell was falsifying
medical records and performing unnecessary heart stent
procedures. That suit resulted in a settlement pursuant to
the terms of which Dr. Mitchell and THC paid $35, 000.
EAMC-the hospital at which Dr. Mitchell practiced-settled for
$1, 000, 000. Counsel for EAMC paid relator's
attorneys' fees ($98, 905.21) and expenses ($5, 375.78).
Relator now seeks reimbursement from Dr. Mitchell and THC for
attorneys' fees in the amount of $19, 269.60 and
reimbursement for expenses in the amount of $832.94. He asks
for a total of $20, 102.54. Dr. Mitchell and THC have refused
to pay and believe that the requested amount is not
proportional to the result. For the reasons set forth below,
the Court will grant in part and deny in part relator's
allows a qui tarn relator like Dr. Foley to
"receive an amount for reasonable expenses which the
court finds to have been necessarily incurred, plus
reasonable attorneys' fees and costs." 31 U.S.C.
§ 3730(d)(1). The FCA further states that "[a]ll
such expenses, fees, and costs shall be awarded against the
defendant." Id. In determining the amount to be
paid, "[t]here is no precise rule or formula."
Hensley v. Eckerhart, 461 U.S. 424, 436 (1983). The
Court has discretion when determining what amount is
reasonable. See Gray v. Lockheed Aeronautical Sys.
Co., 125 F.3d 1387, 1389 (11th Cir. 1997). Courts
generally calculate attorneys' fees under the lodestar
formula, meaning "the number of hours reasonably
expended on the litigation multiplied by a reasonable hourly
rate." Hensley, 461 U.S. at 433. When
analyzing a reasonable hourly rate, courts look at "the
prevailing market rate in the relevant legal community for
similar services by lawyers of reasonably comparable skills,
experience, and reputation." Norman v. Hous. Auth.
of Montgomery, 836 F.2d 1292, 1299 (11th Cir. 1988). The
"relevant market" is usually the "place where
the case is filed." Cullens v. Ga. Dep 't of
Transp., 29 F.3d 1489, 1494 (1 lth Cir. 1994). Litigants
have no duty to select "the nearest and cheapest
attorney" in order to win expenses and fees. Johnson
v. Univ. Coll. of Univ. of Ala. in Birmingham, 706 F.2d
1205, 1208 (1 lth Cir. 1983). A reasonable fee is one that is
"sufficient to induce a capable attorney to undertake
the representation of a meritorious ... case."
Perdue v. Kenny A. ex rel. Winn, 559 US. 542,
the lodestar method is the primary formula for calculating
expenses and fees, courts may adjust the formula to account
for other factors. See Hensley, 461 U.S. at 434. In
the Eleventh Circuit, courts also reduce the amount awarded
in cases that resulted in only partial or limited success.
See Norman, 836 F.2d at 1302. In addition to being
reasonable, the fee breakdown must also be specific and
detailed rather than vague or cursory. Awarding fees and
expenses is an area in which courts inherently have a great
deal of discretion, so the Court must focus on what amount is
reasonable under the totality of the circumstances.
case, relator seeks reimbursement for attorneys' fees in
the amount of $19, 269.60 and reimbursement for expenses in
the amount of $832.94 for a total of $20, 102.54. As
explained below, the Court finds that relator did prevail to
some extent and that the hourly rate and time spent on the
case were both reasonable; however, because relator was not
entirely successful, the $20, 102.54 will be reduced to $8,
The Requested Attorneys' Fees are Reasonable.
assessing fees under the lodestar method, both the hours
worked and the rate charged must be reasonable. Here, both
lodestar components were reasonable.
The Reported Hours were Reasonable.
hours reported are comprised of work directly attributable to
the claims against Dr. Mitchell and THC along with some
expenses and fees common to Dr. Mitchell, THC, and EAMC. When
Dr. Foley settled the costs and fees claim with EAMC, he
removed any time solely attributable to work related to Dr.
Mitchell and THC. Most courts hold that defendants are
jointly and severally liable for fees and expenses, though in
this case relator attempted to allocate the fees and expenses
to the party related to the corresponding work rather than
collecting all or any portion from one defendant. In light of
the difficulty of the case, the hours expended were
reasonable, as FCA claims are inherently complex.
Additionally, the attorneys kept meticulous time logs and
billing descriptions and have reported their hours with the
requisite specificity. The logs in ECF 78-7 are concrete and
specific rather than vague or cursory, with each entry
describing a specific task. Similarly, ECF 78-10 breaks down
the expenses for working on the case rather than simply
estimating an amount. It is also worth noting that Dr.
Mitchell's Response and Objection to Relator's Motion
for Reasonable Expenses, Attorneys' Fees, and Costs does
not even meaningfully dispute that the hours expended were
reasonable. ECF No. 81-1. For these reasons, there is
no need for any reduction on the basis of vague'or
generic billing practices. There is also no issue with the
fact that more than one attorney worked on the case, as that
is common practice with FCA claims.
The Reported Rate was Reasonable.
hourly rates charged by the attorneys are reasonable. The
attorneys in this case have reputations for being successful
in FCA cases. They also submitted affidavits explaining their
backgrounds, credentials, and work in this case. Contrary to
defendants' assertions, courts do consider attorneys'
backgrounds and resumes in deciding whether a fee is
reasonable; to disregard such information would be illogical,
as clients choose attorneys based on their reputations, and
fees are generally established at the beginning of the
attorney-clientrelationship. Defendants do not even attempt
to meaningfully contest the attorneys' past successes,
asking the Court to focus instead on the attorneys'
supposed lack of success in this case. As explained below,
however, the Court strongly disagrees with defendants'
contention that relator did not prevail to any extent.
Additionally, the reasonableness of a fee does not
necessarily hinge on the outcome of the case. When a client
selects an attorney and agrees to pay a certain hourly rate,
he is bound by that hourly rate (barring exceptional
circumstances). He does not get to claim that the fee he
agreed to is suddenly unreasonable simply because he lost his
case. The same principle applies here. With that principle
and the available information about relator's attorneys
in mind, the Court finds that the hourly rates for all four
attorneys were reasonable.
first at Don McKenna, he has repeatedly been recognized for
his work in both regional and national publications. He has
been involved with FCA work since 1997 and won recoveries
totaling more than $1.6 billion. Additionally, he has given
speeches and lectures on the FCA throughout the country. The
Court finds that Mr. McKenna's rate of $510 per hour in
2014 and $525 for all subsequent years was reasonable.
Turning next to Scott Powell, he is a senior partner at Hare,
Wynn, Newell & Newton, LLP. He has been involved with FCA
cases and the qui tarn provisions of the Act since
the mid-1990s and has won some of the most significant
monetary awards in FCA history for his clients. He is
involved with groups dedicated to fighting fraud and has
served as the President of numerous prestigious legal
organizations. The Court finds that Mr. Powell's rate of
$650 per hour was reasonable. As for Randi McCoy, she has
worked on numerous FCA cases. She joined Hare, Wynn, Newell
& Newton, LLP in 2015 and has been practicing exclusively
in the area of the FCA ever since. The Court finds that her
initial hourly rate of $125 was reasonable, as was the
increase to $150 once she gained more experience in FCA
litigation. Finally, Jonathan Corley has been a partner at
Whittelsey, Whittelsey, Poole & Corley, P.C. since 2014.
Although he does not have an FCA-specific background, he has