IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION


MILLER FRANK JOHNSON, et al.
    Plaintiffs,
UNITED STATES OF AMERICA,
    Plaintiff-Intervenor,

Case No. 8:87-Civ-369-T-24

 Hon. Thomas B. McCoun, III

MARTIN VON HOLDEN,
Administrator, G. Pierce Wood
Memorial Hospital, STATE
OF FLORIDA et al.,
Defendants.

BRIEF FOR THE UNITED STATES OPPOSING LIABILITY
FOR DEFENDANTS' ATTORNEYS' FEES AND EXPENSES

RALPH F. BOYD, JR.
Assistant Attorney General

STEVEN H. ROESENBAUM
Chief, Special Litigation Section

JUDITH C. PRESTON
Special Counsel, Special Litigation Section

VERLIN H. DEERINWATER
JOSEPH R. ZOGBY
AILEEN M. BELL
LISA WILSON EDWARDS
Attorneys
United States Department of Justice
Civil Rights Division
Special Litigation Section
P.O. Box 66400
Washington, D.C. 20035-6400
(202) 514-5695
Fax No. (202) 514-8490

TABLE OF CONTENTS

I.  Statement of the Case
   A.  Facts  2
   B.  Course of Proceedings
        1.Underlying lawsuit  2
        2.United States intervenes  4
II.  District Court's Order  5
III.  State's Application For Attorney's Fees And Costs Against The United States  6

SUMMARY OF ARGUMENT 7

ARGUMENT

I.  ATTORNEYS' FEES ARE AVAILABLE UNDER CRIPA ONLY IF THE UNITED STATES' CASE WAS FRIVOLOUS, UNREASONABLE OR GROUNDLESS

            A.          CRIPA Permits An Award Of Attorneys' Fees Against
                        The United States  9

           B.         Prevailing Defendants In Civil Rights Cases Are Entitled
                       To Fees Only Where The Plaintiff's Suit is Found To Be
                       Frivolous, Unreasonable Or Groundless  9

          C.       CRIPA's Waiver Of Sovereign Immunity Must Be
                        Narrowly Construed  21

II.    THE UNITED STATES' CASE AGAINST THE STATE WAS NOT FRIVOLOUS, UNREASONABLE, OR GROUNDLESS

        A.   The Evidence Supporting The United States' Claims Demonstrates That The Case Was Not Frivolous, Unreasonable, Or Groundless22

        B.   The United States Had A Significant Basis For Filing Its CRIPA Suit Against The State23

        C.  The United States Had Ample Evidence To Support Its Allegations At Trial26

III. THE STATE IS NOT ENTITLED TO EXPERT WITNESS FEES  35

CONCLUSION 37

TABLE OF CITATIONS

CASES:

Ageloffv.Delta Airlines, Inc., 860 F.2d 379 (11th Cir. 1988) 36
Agostov.INS, 436 U.S. 748 (1978) 14
Aleyska Pipeline Serv. Co.v.Wilderness Soc'y, 421 U.S. 240 (1975) 9
Brooksv.Center Park Assocs., 33 F.3d 585 (6th Cir. 1994) 13
Brownv.Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001) 13
Brucev.City of Gainesville, 177 F.3d 949 (11th Cir. 1999) 12, 13, 15, 22
Busbyv.City of Orlando, 931 F.2d 764 (11th Cir. 1991) 35
Christiansburg Garment Co.v.EEOC, 434 U.S. 412 (1978)passim
Department of Armyv.Blue Fox, Inc., 525 U.S. 255 (1999) 21
Donnellv.United States, 682 F.2d 240 (D.C. Cir. 1982), cert. denied, 459 U.S. 1204 (1983) 13
Geierv.Alexander,801 F.2d 799 (6th Cir. 1988) 16
Geierv.United States, 871 F.2d 1310 (6th Cir. 1989) 16, 17
Gerena-Valentinv.Koch, 739 F.2d 755 (2d Cir. 1984) 13
Gudenkaufv.Stauffer Communications, Inc., 158 F.3d 1074 (10th Cir. 1998) 13
Hanrahanv.Hampton, 446 U.S. 754 (1980) 13
Harringtonv.Cleburne County Bd. of Educ., 251 F.3d 935 (11th Cir. 2001) 25
Hensleyv.Eckerhart, 461 U.S. 424 (1983)passim
Homeward Bound, Inc.v.Hissom Mem'l Ctr., 963 F.2d 1352 (10th Cir. 1992) 13
Hughesv.Rowe, 449 U.S. 5 (1980) 7, 10, 11, 18
Independent Fed'n of Flight Attendantsv.Zipes, 491 U.S. 754 (1989) 14-15
Jeanv.Nelson, 863 F.2d 759 (11th Cir. 1988), aff'd 496 U.S. 154 (1990) 21
Jonesv.Texas Tech. Univ., 656 F.2d 1137 (5th Cir. 1981) 22
LeBeauv.Libbey-Owens-Ford Co., 799 F.2d 1152 (7th Cir. 1986),
cert. denied, 484 U.S. 815 (1987) 34
Library of Congressv.Shaw, 478 U.S. 310 (1986) 21, 35
Miller Frank Johnsonv.G. Pierce Wood Mem'l Hosp., Case Nos. 99-13458,
00-10695 (11th Cir., June 27, 2001) (unpublished opinion)3
Newmanv.Piggie Park Enters.,390 U.S. 400 (1968) 12, 13
No Barriers, Inc.v.Brinker Chili's Texas, Inc., 262 F.3d 496 (5th Cir. 2001) 13
Northcrossv.Board of Educ., 412 U.S. 427 (1973) 14
Olmsteadv.L.C., 527 U.S. 581 (1999) 5, 20
O'Nealv.DeKalb County, 851 F.2d 653 (11th Cir. 1988) 35
RiddelI v. National Democratic Party, 624 F.2d 539 (5th Cir. 1980) 13
Ruckelshausv.Sierra Club, 463 U.S. 680 (1983) 21
Sassowerv.Field,973 F.2d 75 (2d Cir. 1992),
cert. denied, 507 U.S. 1043 (1993) 13
Sayersv.Stewart Sleep Ctr., Inc., 140 F.3d 1351 (11th Cir. 1998) 22, 23, 25
Sullivanv.School Bd. of Pinellas County, 773 F.2d 1182 (11th 1985)passim
Swansv.City of Lansing, 65 F. Supp. 2d 625 (W.D. Mich 1998) 36
Tillmanv.Wheaton-Haven Recreation Ass'n, 580 F.2d 1222 (4th Cir. 1978) 13
Turnerv.Sungard Bus. Syst. Inc., 91 F.3d 1418 (11th Cir.), reh'g denied, 103 F.3d 150 (11th Cir. 1996) 25
United States Steel, LLCv.Tieco, Inc., 261 F.3d 1275 (11th Cir. 2001) 36
United States Steel Corp.v.United States, 519 F.2d 359 (3d Cir. 1975) 15
United Statesv.Crosby, 59 F.3d 1133 (11th Cir. 1995) 33
United Statesv.Mississippi, 921 F.2d 604 (5th Cir. 1991) 34
United Statesv.Sherwood, 312 U.S. 584 (1941) 21
West Virginia Univ. Hosps., Inc.v.Casey, 499 U.S. 83 (1991) 9, 35, 36
Youngbergv.Romeo, 457 U.S. 307 (1982) 5, 26

CONSTITUTION AND STATUTES:

United States Constitution
  First Amendment 2
  Fifth Amendment 2
  Sixth Amendment 2
  Ninth Amendment 2
  Fourteenth Amendment 2, 4, 5
28 U.S.C. 1821 8, 36
28 U.S.C. 1821(b) 36
28 U.S.C. 1821(c) 36
28 U.S.C. 1821(d)(1) 37
28 U.S.C. 1920 8, 36-37
28 U.S.C. 1920(3) 36
42 U.S.C. 1983 2
42 U.S.C. 2000e-5(k) 10, 11
Americans with Disabilities Act:
  42 U.S.C. 12132 4, 5
  42 U.S.C. 12132-12133 19, 20
  42 U.S.C. 12205 13, 14
Emergency School Aid Act, 20 U.S.C. 1617 13
Civil Rights Attorney's Fees Awards Act:
  42 U.S.C. 1988 15
  42 U.S.C. 1988(b) 10, 11, 35
Civil Rights Act of 1964:
  Title II, 42 U.S.C. 2000a-3(b) 13, 14
  Title VIIpassim
Civil Rights of Institutionalized Persons Act (CRIPA). passim
  42 U.S.C. 1997a(b) 9
  42 U.S.C. 1997c(a) 4, 23
  42 U.S.C. 1997c(b)(2) 24
  42 U.S.C. 1997c(d) 1, 9
Fair Housing Act, 42 U.S.C. 3613(c)(2) 13, 14
Rehabilitation Act, 29 U.S.C. 794a(b) 13, 14
Voting Rights Act, 42 U.S.C. 1973l(e) 13, 14

REGULATIONS:
28 C.F.R. 35.130 19, 20

LEGISLATIVE HISTORY:
H.R. Rep. No. 897, 96th Cong., 2d Sess. (1980) 16
H.R. Rep. No. 1558, 94th Cong., 2d Sess. (1976) 10
S. Rep. No. 416, 96th Cong., 2d Sess. (1980) 16
S. Rep. No. 1011, 94th Cong., 2d Sess. (1976) 11
Pub. L. No. 102-166, §§ 113(a)(2), 105 Stat 1079 33

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

MILLER FRANK JOHNSON, et al.
     Plaintiffs,
UNITED STATES OF AMERICA,
Case No. 8:87-Civ-369-T-24
Plaintiff-Intervenor,
 Hon. Thomas B. McCoun, III
MARTIN VON HOLDEN,
Administrator, G. Pierce Wood
Memorial Hospital, STATE
OF FLORIDA et al.,
Defendants.

BRIEF FOR THE UNITED STATES OPPOSING LIABILITY
FOR DEFENDANTS' ATTORNEYS' FEES AND EXPENSES

On September 13, 2001, defendants Martin Von Holden, State of Florida et al. (State), filed an application for attorneys' fees and expenses against the United States pursuant to 42 U.S.C. 1997c(d), following this Court's Opinion and Order of June 28, 2001, granting final judgment in favor of the State. The State seeks payment of attorneys' fees and expenses in the amount of $2,381,025.16. The United States opposes the State's application.

I.  Statement of the Case

A. Facts

The State operates and administers G. Pierce Wood Memorial Hospital (GPW Hospital) in Arcadia, Florida. R. 1319, Order at 2.(1)GPW Hospital is a psychiatric facility, and an overwhelming majority of patients at GPW Hospital have severe and persistent mental illnesses. Order at 2. GPW Hospital typically serves approximately 350 patients. Order at 2-3.

B. Course of Proceedings

1.Underlying lawsuit. On March 11, 1987, private plaintiffs brought this action pursuant to 42 U.S.C. 1983, alleging that conditions at GPW Hospital violated the First, Fifth, Sixth, Ninth, and Fourteenth Amendment rights of hospital patients. R. 1, Complaint; R. 30, Third Amended Complaint. Plaintiffs sought declaratory relief that the State's confinement and restriction of patients violate their constitutional rights and injunctive relief enjoining the State from any such further violations. R. 30, Third Amended Complaint at 11-12.

On June 9, 1989, this court entered a consent under which the State agreed to make certain changes in the administration of the hospital, the treatment and care of patients, and the discharge of patients into community placements. R. 68, Consent Decree. These changes included complying with Florida Department of Health and Rehabilitative Services regulations with respect to administering psychotropic drugs and governing restraint procedures (R. 68, Consent Decree at 4-9); providing appropriate exercise and recreational periods and programs for patients (R. 68, Consent Decree at 10); putting into place policies and procedures regarding patient participation in treatment and documentation of treatment progress (R. 68, Consent Decree at 11-13); and complying with state policies with respect to providing adequate medical, dental, and rehabilitation treatment, and increasing staffing at the hospital (R. 68, Consent Decree at 16, 19-20). In addition, the State agreed to a process for placing qualified patients into community-based placements. R. 68, Consent Decree at 21-22. The parties agreed to monitor the State's compliance with the consent decree. R. 68, Consent Decree at 20.(2)Shortly thereafter, though, the State withdrew its support of the decree and argued that it should be vacated. See R. 83, Response By State In Opposition To Consent Decree.

2.United States intervenes.  On July 10, 1996, the United States moved to intervene as of right in the case pursuant to Section 5 of the Civil Rights Of Institutionalized Persons Act (CRIPA), 42 U.S.C. 1997c(a)(1). R. 637, U.S. Motion to Intervene. CRIPA authorizes the United States to intervene in on-going litigation concerning federal statutory or constitutional rights of institutionalized persons. 42 U.S.C. 1997c(a)(1). The Attorney General filed a complaint in intervention alleging that the State's practices at GPW Hospital caused patients to suffer harm in violation of the Fourteenth Amendment to the Constitution and the Americans With Disabilities Act, 42 U.S.C. 12132. The District Court granted the motion to intervene on March 23, 1998. R. 705, Order.

Following discovery, the District Court conducted a 23-day bench trial from August 7, 2000, through September 8, 2000. The first day of trial, the State informed the District Court that GPW Hospital "may be closing." Tr. 8/7/00, p. 107. Following the conclusion of trial, the parties filed proposed findings of fact and memoranda of law.

II.  District Court's Order

On June 28, 2001, the District Court entered an opinion and order finding that the level of care and services at GPW Hospital and its placement of patients into community settings satisfied the State's obligations under the Fourteenth Amendment and the ADA, 42 U.S.C. 12132. R. 1319, Order. The Court entered final judgment in favor of the State.

The district court observed that under the Supreme Court's decision inYoungbergv.Romeo, 457 U.S. 307 (1982), an institutionalized patient has a constitutional right to adequate food, shelter, clothing, and medical care, and a substantive due process right to safe conditions of confinement, and that in "determining whether or not a constitutional violation has taken place, a court must determine whether a state exercised professional judgment in a decision related to constitutionally protected rights." Order at 25. The District Court observed that plaintiffs and the United States alleged that the State engaged in three constitutional violations: failing to provide reasonable care and safety of patients at GPW, adequate treatment to patients, and adequate community health services. The District Court determined that the State's provision of services and treatment in each of these areas was constitutionally sufficient.

The ADA prohibits discrimination in public services based on disability. The District Court noted that inOlmsteadv.L.C., 527 U.S. 581 (1999), the Supreme Court held that the ADA obligates the State to place persons with mental disabilities in community settings when the "State's treatment professionals have determined that community placement is appropriate," the transfer "to a less restrictive setting is not opposed" by the patient, and the "placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with disabilities." Order at 28. The District Court determined that the State's mental health program, as now administered, did not violate the ADA. The Court held that the State's discharge planning and patients' needs assessment process at GPW Hospital did not violate the ADA, and while there was evidence that "community services and facilities could be different and in some instances better," the State's mental health program does not result in unnecessary isolation of patients in segregated settings. Order at 43.

III.  State's Application For Attorney's Fees And CostsAgainst The United States

The State, on September 13, 2001, filed an application for attorneys' fees and expenses against the United States. R. 1351, State's Application for Attorneys' Fees and Costs & Memo. In Support Of Application For Fees. The State seeks fees in excess of $1.7 million, and litigation costs and expenses in the amount of $679,657.66 (of which $404,074.00 is to cover expert witness fees and experts' travel expenses).

On October 5, 2001, the United States moved to bifurcate the attorneys' fees proceeding. R. 1363, U.S. Motion to Bifurcate. The United States moved the Court to consider first the question whether the United States is liable at all to the State for attorneys' fees or expert witness fees, prior to determining the precise fee amount. On October 26, 2001, prior to this Court's ruling on that motion, the United States moved for an extension of time to January 30, 2002, to respond to the State's application for fees. R. 1372, U.S. Motion for Extension; R. 1373, U.S. Memo in Support of Motion. On January 15, 2002, this Court granted the United States' motions to bifurcate and for extension of time.

SUMMARY OF ARGUMENT

Under CRIPA, the court may allow the prevailing party, other than the United States, a reasonable attorney's fee against the United States as part of the costs. However, CRIPA does not make the United States liable for fees to the State defendants merely because the Court entered judgment in their favor. The proper standard for awarding fees to prevailingdefendantsin civil rights cases, such as CRIPA cases, is that a plaintiff is liable for fees only if its case was "frivolous, unreasonable, or without foundation."Christiansburg Garment Co.v.EEOC, 434 U.S. 412, 421 (1978). "The fact that a plaintiff may ultimately lose his case is not in itself a sufficient justification for the assessment of fees."Hughesv.Rowe, 449 U.S. 5, 14 (1980). The legislative history of CRIPA reflects that Congress intended that theChristiansburgstandard be applied.

Employing theChristiansburgstandard, the United States is not liable for the State's attorneys' fees. The CRIPA suit brought by the United States clearly was not frivolous. The United States brought this CRIPA action only after a thorough investigation of conditions at GPW Hospital showed sufficient indication that the State was failing to meet its constitutional and statutory obligations to hospital patients. Moreover, the United States presented seven expert witnesses and submitted numerous exhibits at trial in support of the claims raised in the complaint. Each of the United States' experts testified that the State's mental health services substantially departed from professional standards. While the United States did not secure a judgment in its favor, its case was certainly not so lacking in merit as to be groundless or without foundation.

While the State seeks payment of expert witness fees by the United States, payment of fees for expert witnesses is not permitted under CRIPA, nor may the payment of such fees be taxed as costs against the United States under 28 U.S.C. 1920 or 28 U.S.C. 1821.

ARGUMENT

I

ATTORNEYS' FEES ARE AVAILABLE UNDER CRIPA
ONLY IF THE UNITED STATES' CASE WAS FRIVOLOUS,
UNREASONABLE OR GROUNDLESS

A.    CRIPA Permits An Award Of Attorneys' Fees Against The United States

The "American Rule" with regard to attorney's fees is that each party must bear his or her own attorney fees.Aleyska Pipeline Serv. Co.v.Wilderness Soc'y, 421 U.S. 240, 247 (1975). Congress enacted exceptions to this rule in the form of fee shifting provisions that allow recovery of attorney fees by a prevailing party. SeeWest Virginia Univ. Hosps., Inc.v.Casey, 499 U.S. 83, 89 (1991). CRIPA alters the American rule and waives the United States' sovereign immunity for cases filed under its provisions. Under 42 U.S.C. 1997a(b) (United States as plaintiff) and 1997c(d) (United States as plaintiff-intervenor), courts may allow the prevailing party attorney's fees as costs against the United States. Section 1997c(d) states:

In any action in which the United States joins as an intervenor under this section, the court may allow the prevailing party, other than the United States, a reasonable attorney's fee against the United States as part of the costs.


B.  Prevailing Defendants In Civil Rights Cases Are Entitled To Fees Only Where The Plaintiff's Suit Is Found To Be Frivolous, Unreasonable Or Groundless

1. The District Court entered final judgment in this case in favor of the State. The question before this Court is what legal standard must be used to award the State, as a prevailing defendant, attorney's fees under 42 U.S.C. 1997c(d). The State asserts that the standard for assessing attorneys' fees in favor of a prevailing defendant against the United States under CRIPA is an issue of first impression. R. 1351, State's Memo at 11 ("Defendants are unaware of any cases evaluating the award of attorneys' fees against the United States under CRIPA."). The State argues that under CRIPA it is entitled to fees and expenses against the United States simply because the Court entered final judgment in its favor. R. 1351, State's Memo at 11.

The proper standard, however, for awarding fees to prevailingdefendantsin civil rights cases is where the plaintiff's suit is "frivolous, unreasonable, or without foundation."Hughesv.Rowe,449 U.S. 5, 14 (1980); see alsoChristiansburg Garment Co.v.EEOC, 434 U.S. 412, 421 (1978) (established standard for awarding fees under Title VII, 42 U.S.C. 2000e-5(k)). The text of the attorney's fee provisions of CRIPA are essentially identical to the civil rights fees provision created by the Civil Rights Attorney's Fees Awards Act, 42 U.S.C. 1988(b) and that in Title VII. Section 1988 gives a district court discretion to award reasonable attorney's fees to a prevailing party in a number of civil rights proceedings, stating "the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs." A central purpose of Section 1988 is to "ensure 'effective access to the judicial process' for persons with civil rights grievances."Hensleyv.Eckerhart, 461 U.S. 424, 429 (1983), quoting H.R. Rep. No. 1558, 94th Cong., 2d Sess. 1 (1976). A prevailingplaintiffis entitled to recover attorney's fees "unless special circumstances would render such an award unjust."Hensley, 461 U.S. at 429, quoting S. Rep. No. 1011. 94th Cong., 2d Sess. 4 (1976). However, a district court may award fees to a prevailingdefendantonly where the court finds that the plaintiff's action was "frivolous, unreasonable, or without foundation."Hughes, 449 U.S. at 14, quotingChristiansburg,434 U.S. at 422.

The standard for awarding fees to defendants in civil rights cases emanates fromChristiansburg Garment,supra. In that case, the Equal Employment Opportunity Commission (EEOC) sued the Christiansburg Garment Company, alleging it violated Title VII, 42 U.S.C. 2000e, by engaging in racial discrimination against its employees. The EEOC lost the case and the defendant moved for attorney's fees under the attorney's fees provision of Title VII. The attorney's fees provision in Title VII is nearly identical to 42 U.S.C. 1988(b) and to CRIPA's attorney's fee provision. See pp. 9-10,supra. The Title VII fees provision states that "the court, in its discretion, may allow the prevailing party, other than the Commission or the United States, a reasonable attorney's fee as part of the costs, and the Commission and the United States shall be liable for costs the same as a private person." 42 U.S.C. 2000e-5(k).

The Court had previously held that a prevailing plaintiff in a Title VII case was entitled to fees "unless special circumstances would render such an award unjust."Christiansburg, 434 U.S. at 416-417 (internal quotation marks and citation omitted). The employer inChristiansburgargued that this same standard should also be applied to prevailing defendants. However, the Supreme Court unanimously rejected this position and held, instead, that prevailing defendants are entitled to attorney's fees only if the plaintiff's case is "frivolous, unreasonable, or without foundation."Id.at 422.

The Supreme Court found two strong equitable considerations favoring an attorney's fee award to a prevailing Title VII plaintiff that do not apply to a prevailing defendant. First, the plaintiff is "the chosen instrument of Congress to vindicate 'a policy that Congress considered of the highest priority.'"Christiansburg, 434 U.S. at 418, quotingNewmanv.Piggie Park Enters.,390 U.S. 400, 402 (1968). Second, when a district court awards attorney's fees to a prevailing plaintiff, it is awarding fees against a violator of federal law.Christiansburg, 434 U.S. at 418; see alsoBrucev.City of Gainesville, 177 F.3d 949, 951 (11th Cir. 1999). Neither applies to prevailing defendants.

2.Christiansburg involved the attorney's fees provision of Title VII, but its standard has been applied to similarly-worded fee provisions in other civil rights statutes. The Supreme Court has noted that

[t]he provision for counsel fees in § 1988 was patterned upon the attorney's fees provisions contained in Title II and VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000a-3(b) and 2000e-5(k), and § 402 of the Voting Rights Act Amendments of 1975, 42 U.S.C. § 1973l(e). The legislative history of § 1988 indicates that Congress intended that the standards for awarding fees be generally the same as under the fee provisions of the 1964 Civil Rights Act. The standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees to a prevailing party.
Hensley, 461 U.S. at 433 n.7 (citation and internal quotation marks omitted); see alsoHanrahanv.Hampton, 446 U.S. 754, 758, n.4 (1980).

    Indeed, theChristiansburgstandard has been widely applied to other civil rights fee provisions such as the Americans With Disabilities Act, 42 U.S.C. 12205 (seeBruce, 177 F.3d at 951;No Barriers, Inc.v.Brinker Chili's Texas, Inc., 262 F.3d 496, 498 (5th Cir. 2001);Brownv.Lucky Stores, Inc., 246 F.3d 1182, 1190 (9th Cir. 2001)); the Fair Housing Act, 42 U.S.C. 3613(c)(2) (seeBrooksv.Center Park Assocs., 33 F.3d 585, 587 (6th Cir. 1994);Sassowerv.Field,973 F.2d 75 (2d Cir. 1992), cert. denied, 507 U.S. 1043 (1993)); the Voting Rights Act, 42 U.S.C. 1973l(e) (seeRiddelI v. National Democratic Party, 624 F.2d 539 (5th Cir. 1980);Gerena-Valentinv.Koch, 739 F.2d 755 (2d Cir. 1984);Donnellv.United States, 682 F.2d 240, 245 (D.C. Cir. 1982), cert. denied, 459 U.S. 1204 (1983)); Title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a-3(b) (seeGudenkaufv.Stauffer Communications, Inc., 158 F.3d 1074, 1081 (10th Cir. 1998), citingNewman, supra;Tillmanv.Wheaton-Haven Recreation Ass'n, 580 F.2d 1222, 1226 (4th Cir. 1978)); the Rehabilitation Act, 29 U.S.C. 794a(b) (seeHomeward Bound, Inc.v.Hissom Mem'l Ctr., 963 F.2d 1352, 1354 n.1 (10th Cir. 1992)); and the Emergency School Aid Act, 20 U.S.C. 1617 (seeNorthcrossv.Board of Educ., 412 U.S. 427, 428 (1973)).

Like CRIPA, each of these civil rights fee-shifting provisions direct district courts to, at their discretion, award attorneys' fees to the "prevailing party." See Americans with Disabilities Act, 42 U.S.C. 12205 ("the court or agency, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee"); Fair Housing Act, 42 U.S.C. 3613(c)(2) ("the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee and costs"); Voting Rights Act, 42 U.S.C. 1973l(e) ("the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs"); Title II of the Civil Rights Act, 42 U.S.C. 2000a-3(b) ("the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs"); and the Rehabilitation Act, 29 U.S.C. 794a(b) ("the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs").

3. In view of Congress' consistent use of nearly identical statutory language in the attorney's fee provisions in each of these civil rights statutes, this Court should assume that "Congress intended the language to be interpreted similarly."Agostov.INS, 436 U.S. 748, 754 (1978); see alsoIndependent Fed'n of Flight Attendantsv.Zipes, 491 U.S. 754, 758 n. 2 (1989) ("fee shifting statutes' similar language is 'a strong indication' that they are to be interpreted alike");Hensley, 461 U.S. at 424 n.7 ("the standards set forth in this opinion are generally applicable in all cases in which Congress has authorized an award of fees of a 'prevailing party.'");Bruce, 177 F.3d at 951 (applyingChristiansburgstandard to ADA fee-shifting provision because it is "substantially the same as the Title VII provision involved inChristiansburg"). Moreover, the policy concerns that led to the standard under Title VII's fee provision and Section 1988 regarding prevailing defendants apply equally to CRIPA. Even though CRIPA cases are brought solely by the United States against units of state governments, that does not undermine the policy considerations embodied in similarly-worded fee provisions of other civil rights statutes. In fact, inChristiansburg, the Supreme Court rejected the argument that a more lenient standard should apply when the federal government is the plaintiff. 434 U.S. at 422-423 n.20 ("although a district court may consider distinctions between the [government] and private plaintiffs in determining the reasonableness of the [government's] litigation efforts, we find no grounds for applying a different general standard whenever the [government] is the losing plaintiff"); see alsoUnited States Steel Corp.v.United States, 519 F.2d 359, 364 n.24 (3d Cir. 1975). Moreover, in CRIPA cases, the United States is the only party authorized to bring suit and is thus the "chosen instrument of Congress" to vindicate the rights of institutionalized persons.Christiansburg, 434 U.S. at 418.

The State cites toGeierv.United States, 871 F.2d 1310 (6th Cir. 1989), and argues that theChristiansburgstandard does not apply to CRIPA (State's Memo at 12). However, for reasons stated above,supra, Congress fully intended that courts utilize theChristiansburgstandard in assessing the award of attorney's fees in CRIPA cases. Moreover, the court's decision inGeierto impose fees against the United States was driven by unique circumstances that do not exist here.

InGeier, the United States intervened as plaintiff and, along with the private plaintiffs, originally sought relief against the State of Tennessee to eliminate the effects of thede juresegregation in the State's higher education system. The United States' involvement "helped lay the foundation for the consent decree eventually entered into by the private litigants and the State." 871 F.2d at 1313. Years later the United States reversed its position and challenged the validity of that same decree. The United States' efforts were opposed by private plaintiffs and the State. Private plaintiffs and the State prevailed against the United States because the court of appeals affirmed the district court's order entering the consent decree. SeeGeierv.Alexander, 801 F.2d 799 (6th Cir. 1988). The United States was later ordered to pay attorney's fees to private plaintiffs and the State. The court of appeals affirmed the fees award, stating that the private plaintiffs and the State "prevailed over the attempt by the government to prevent the establishment of a mutually agreed upon plan to eliminate the residual effects ofde juresegregation in Tennessee's system of higher education, a purpose certainly in accordance with the federal civil rights statutes."Geier, 871 F.2d at 1314. Given the reversal of the United States' position, the court of appeals concluded that the "financial burden necessitated by the parties in order to prevail against the government's attempt to restrict the scope of mutually agreed upon relief through a challenge to the consent decree should be born by the government."Ibid.

The court of appeals awarded fees to the prevailing parties inGeierprincipally because of the United States' change in position in the litigation. There is no such reversal of position here. The United States brought the CRIPA action against the State of Florida to remedy the practices the United States determined were causing harm to GPW patients. The United States remained on plaintiffs' side of the case.

4. The legislative history of CRIPA reflects Congress' intent that courts apply theChristiansburgstandard for assessing attorney's fees under CRIPA. The Conference Report explains that the award of fees under CRIPA "is discretionary with the court, and it is intended that the present standards used by courts under the civil rights laws will apply." H. Rep. No. 897, 96th Cong. 2d Sess. 12 (1980),reprinted in1980 U.S.C.C.A.N. 787, 837. At the time of CRIPA's passage, "the present standards used by courts under the civil rights laws" was the standard ofChristiansburg, as the Senate Report specifically acknowledged. See S. Rep. 416, 96th Cong., 2d Sess. 31 & n.86 (1980),reprinted in1980 U.S.C.C.A.N. 787, 813-814 ("This provision is similar to that found in Title VII of the Civil Rights Act of 1964. SeeChristiansburg Garment Co.v.EEOC, 434 U.S. 412."). The Supreme Court relied upon an almost identical indication of legislative intent when it applied Title VII fee standards to Section 1988 cases inHensley. See 461 U.S. at 433 n.7 (quoting legislative history which stated that Congress expected "the standards for awarding fees [to] be generally the same as under the fee provisions of the 1964 Civil Rights Act").

The similarities in language, context, and legislative history led the Supreme Court to hold thatChristiansburgapplied to Section 1988 cases as well as to Title VII. SeeHensley, 461 U.S. at 433 n.7;Hughes, 449 U.S. at 15. Given these factors, theChristiansburgstandard clearly applies to the CRIPA attorney's fees provisions.

5. The State asserts (State's Memo at 12-18) that other considerations support an award of attorneys' fees by the United States. These considerations are meritless. The State argues that the United States' intervention was "unjustified" because the State was operating under a consent decree (State's Memo at 12-13). But CRIPA authorizes the Attorney General to intervene in an ongoing suit to seek relief from "egregious or flagrant conditions which deprive persons residing in
institutions" of their statutory and constitutional rights. 42 U.S.C. 1997c(a)(1). The Attorney General in this case had reasonable cause to believe that despite the entry of the consent decree, the State's practices were causing harm to GPW Hospital patients. R. 637, U.S. Motion to Intervene, Certificate of the Attorney General. Moreover, the United States can pursue relief pursuant to the ADA to ensure that current and former GPW patients were being served in the most integrated setting appropriate to their needs. 42 U.S.C. 12132-12133; 28 C.F.R. 35.130. The fact that a consent decree was in place does not affect the United States' authority to seek relief to remedy violations of constitutional and statutory law.

The State complains (State's Memo at 15-16) that the United States used the case broadly to criticize the State's mental health care system. To the extent that this allegation is correct, it does not provide a basis for awarding attorneys' fees to the State. The United States presented expert testimony regarding flaws in the State's institutional and community mental health system in order to demonstrate that the State's provision of mental health services substantially departed from professional standards. The United States' complaint included allegations that the State's community based treatment program violated the ADA. R. 637, U.S. Complaint. The regulations promulgated pursuant to the ADA require public entities to "make reasonable modifications" to avoid "discrimination on the basis of disability," but does not require measures that would "fundamentally alter" the nature
of the entity's programs. 28 C.F.R. 35.130(b)(7);Olmstead, 527 U.S. at 596-607. Thus, witnesses for the United States had to testify about the State's community mental health system in order to prove that modifications to the system within the GPW Hospital catchment area would constitute reasonable modifications and would not fundamentally alter the State's entire community based program.

The State also argues (Memo at 16-17) that the United States ignored the proposed closure of GPW Hospital. This allegation also does not support the imposition of fees because Congress' mandate under CRIPA authorizes the Attorney General to seek relief from conditions that deprive institutionalized persons of any rights protected by the "Constitution or laws of the United States." 42 U.S.C. 1997c(a)(1). The ADA protects persons with mental illnesses from being subject to unnecessary segregation, and this right is enforceable regardless of whether the hospital closes. 42 U.S.C. 12132-12133; 28 C.F.R. 35.130. The United States investigated the institutional and community mental health system at GPW Hospital, determined that there was reasonable cause to believe that the State was violating the rights of patients, and filed its complaint in 1996, long before the State announced that it may close GPW Hospital. Throughout the investigation, the filing of this action, the trial, and the issuance of this Court's decision on the merits in 2000, the State continued to operate and provide institutional and community mental health services to patients. Even though the State asserts that GPW Hospital's closure is "imminent," it remains obligated to comply with constitutional and federal statutory law in providing institutional and community mental health services in the GPW catchment area. The State's obligations in these respects also apply to former GPW patients who have been discharged.

C.CRIPA's Waiver Of Sovereign Immunity Must Be Narrowly Construed

When the government consents to an action, "the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit."United Statesv.Sherwood, 312 U.S. 584, 586 (1941). Indeed, sovereign immunity principles direct that this court apply the more narrowChristiansburgstandard as that is the standard that Congress explicitly directed courts to apply to the fee shifting provisions of CRIPA (see pp. 17-18,supra), rather than a more liberal interpretation urged by the State in its application for fees (see p. 10,supra). SeeLibrary of Congressv.Shaw, 478 U.S. 310, 318 (1986) ("waiver must be construed strictly in favor of sovereign and not enlarged beyond what the language requires");Department of Armyv.Blue Fox, Inc., 525 U.S. 255, 261 (1999) ("a waiver of sovereign immunity is to be strictly construed, in terms of its scope, in favor of the sovereign [and] must also be 'unequivocally expressed' in the statutory text");Ruckelshausv.Sierra Club, 463 U.S. 680, 685 (1983); Jeanv.Nelson, 863 F.2d 759, 775 (11th Cir. 1988), aff'd, 496 U.S. 154 (1990). Applying theChristiansburgstandard to the State's application for fees is consistent with the waiver of sovereign immunity.

II

THE UNITED STATES' CASE AGAINST THE STATE WAS NOT
FRIVOLOUS, UNREASONABLE, OR GROUNDLESS

A.The Evidence Supporting The United States' Claims Demonstrates That The Case Was Not Frivolous, Unreasonable, Or Groundless

The Supreme Court inChristiansburgcautioned courts that when applying the attorney's fees standard to prevailing defendants, the court must
 

post hoc 434 U.S. at 421-422; see alsoSayersv.Stewart Sleep Ctr., Inc., 140 F.3d 1351, 1352 (11th Cir. 1998); Brucev.City of Gainsville, 177 F.3d 949, 951 (11th Cir. 1999). "In determining whether a suit is frivolous 'a district court must focus on the question whether the case is so lacking in arguable merit as to be groundless or without foundation, rather than whether the claim was ultimately successful.'"Sullivanv.School Bd. of Pinellas County, 773 F.2d 1182, 1189 (11th Cir. 1985), quotingJonesv.Texas Tech. Univ., 656 F.2d 1137, 1145 (5th Cir. 1981). The Eleventh Circuit has recognized that "cases where findings of 'frivolity' have been sustained typically have been decided in the defendant's favor on a motion for summary judgment or a Fed. R. Civ. P. 41(b) motion for involuntary dismissal," where "the plaintiffs did not introduce any evidence to support their claims."Sullivan, 773 F.2d at 1189 (citations omitted). Where "plaintiffs introduced evidence sufficient to support their claims, findings of frivolity typically do not stand."Ibid.(citations omitted). "[D]eterminations regarding frivolity are fact-specific and * * * [are] made on a case-by-case basis."Sayers, 140 F.3d at 1353;Sullivan, 773 F.2d at 1189.

B.The United States Had A Significant Basis For Filing Its CRIPA Suit Against The State

Based on the facts in this case, and theSullivanstandard, the United States' CRIPA action against the State was not frivolous, groundless, or without merit. The United States filed this suit following the State's agreement under the 1989 consent decree with private plaintiffs to bring GPW Hospital into compliance with constitutional and statutory standards. After investigating conditions at GPW Hospital, the United States determined that the State appeared to be failing to meet its constitutional and statutory obligations to hospital patients.

Under CRIPA, 42 U.S.C. 1997c(a), the Attorney General may intervene in any ongoing suit that has been commenced "seeking relief from egregious or flagrant conditions which deprive persons residing in institutions of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States" where the Attorney General has "reasonable cause" to believe that the institution is engaged in a pattern or practice of unlawful activity against institutionalized persons. In this case, the Attorney General certified that she had reasonable cause to intervene in this action, and, as required by 42 U.S.C. 1997c(b)(2), personally signed the certification. R. 637, U.S. Motion to Intervene, Certificate of the Attorney General.

The State contends that the Attorney General failed to notify the Governor of Florida of the investigation of GPW Hospital. R. 1351, State's Memo at 14. However, the memorandum supporting the United States' motion to intervene specifically informed the court that it "notified the Governor of Florida on May 17, 1995, of its intent to investigate conditions at the facility." R. 638, U.S. Memo. at 2.

Although the State initially denied the United States access to the GPW Hospital facility and its records, the United States had "gathered compelling information about the seriously deficient conditions at G. Pierce Wood from public documents provided by the State, including the August 1995 Florida State Inspector General's Report," the "September 5, 1995 G. Pierce Wood Memorial Hospital Review Team Report to the Florida Secretary of Health and Rehabilitative Services," "surveys conducted by the Health Care Financing Administration of the United States Department of Health and Human Services," and "information from former G. Pierce Wood patients and staff, advocates, concerned citizens, and media reports." R. 638, U.S. Memo at 2-3. The United States informed the district court in its motion to intervene that these sources indicated that the State continued to provide substandard care to hospital patients despite the requirements of the consent decree. These sources indicated specifically that the State continued to fail to protect patients from harm, provide adequate care and treatment, and serve patients in appropriately integrated settings. R. 638, U.S. Memo at 3 & Exh. B. For example, the August 1995 Inspector General report found "serious, life-threatening conditions" at GPW Hospital (R. 638, U.S. Memo at 3 & Exh. C).

Moreover, the United States' case is not frivolous under the standard established by the Eleventh Circuit inSullivan, a Title VII case that clarified the standards that guide a district court's inquiry for awarding fees to civil rights defendants. TheSullivancourt articulated the following guidelines for determining whether a plaintiff's claim is frivolous:

(1) whether the plaintiff established a prima facie case; (2) whether the defendant offered to settle; and (3) whether the trial court dismissed the case prior to trial or held a full-blown trial on the merits.
773 F.2d at 1189; see alsoSayers, 140 F.3d at 1353;Harringtonv.Cleburne Cty. Bd. of Educ., 251 F.3d 935 (11th Cir. 2001);Turnerv.Sungard Bus. Sys. Inc., 91 F.3d 1418, 1422 (11th Cir.), reh'g denied, 103 F.3d 150 (11th Cir. 1996). The United States established a prima facie case that the State's institutional and community mental health system departed from professional standards, the parties engaged in two mediations in attempts to settle the case, the State did not move for summary judgment or to dismiss the action, and the Court held a "full blown" 23-day trial on the merits. There is no basis for finding that the United States' CRIPA action was frivolous.

C.The United States Had Ample Evidence To Support Its Allegations At Trial

Following discovery, this Court conducted an extensive trial, hearing testimony from 28 witnesses, and admitting numerous exhibits. At the close of trial, this Court commented that the case was "professionally tried," thanked the parties for their "professionalism," Tr. 9/8/00, p. 267, and finally issued a 43-page opinion in the case.

At trial the United States presented seven expert witnesses, each of whom is a nationally-recognized expert in his or her area of expertise,and submitted numerous exhibits in support of each of the claims raised in the complaint. UnderYoungbergv.Romeo, 457 U.S. 307, 320-323 (1982), the Supreme Court held that States are obligated to provide reasonable care and safety to institutionalized persons that satisfies accepted professional judgment, practice, or standards. The United States' expert witnesses conducted a thorough review of state services in their area of expertise, consisting of touring the hospital and/or community mental health facilities, interviewing staff and patients, and extensive document review.

Dr. Jeffrey Lee Geller, a prominent professor of psychiatry and Director of Public Sector Psychiatry at the University of Massachusetts Medical School, has written extensively on the care and treatment of persons with mental illness, has received awards for his work in the field of psychiatry, Tr. 8/7/00, pp. 119, 127-129, and has testified as an expert in other proceedings related to institutions for persons with mental illness. Tr. 8/7/00, pp. 123-126. Dr. Geller testified in this case as an expert in the provision of mental health services to persons with mental illness and public sector psychiatry. Tr. 8/7/00, pp. 131-132. He testified on the adequacy of supervision at the hospital,(3)and on the level of treatment administered by the hospital for self-injurious or assaultive behavior. Dr. Geller determined that GPW Memorial Hospital did not respond adequately to patients with a heightened risk of harming themselves or others, and failed to develop or modify treatment plans to address the severe behaviors by some patients. He testified that the "care and treatment provided to G. Pierce Wood patients * * * is a substantial departure from accepted professional judgment and standards." Tr. 8/7/00, p. 150.

Dr. Judith Jaeger, who also testified for the United States, is a neuro-psychologist specializing in psychosocial services for people with severe and persistent mental illness. Tr. 8/9/00, pp. 111-112. Dr. Jaeger consults with other psychiatric facilities assisting hospital officials in developing targeted psycho-social rehabilitative methods for discharging patients into community facilities, works as the Director of the Center for Neuropsychiatric Outcome and Rehabilitation Research at Hillside Hospital in New York, and sits on an advisory committee with the World Health Organization (WHO) that is revising the WHO's policy documents on international classifications on impairments, disabilities and handicaps. Tr. 8/9/00, pp. 111-112, 122-123. She also is an elected member of the World Psychiatric Association's Section Committee for Classification, Diagnostic Assessment and Nomenclature, which advises the American Psychiatric Association and the WHO. Tr. 8/9/00, pp. 123-124. Dr. Jaeger testified as an expert in the areas of psychology and psycho-social rehabilitation. Tr. 8/9/00, p. 124. She evaluated the GPW Memorial Hospital, and testified that various hospital procedures and policies for psycho-social rehabilitation and psychological services substantially departed from professionally accepted standards. Tr. 8/9/00, p. 125.(4)

The Court also heard testimony from United States witness Dr. Nancy Ray, a consultant in the field of mental disabilities. Tr. 8/10/00, pp. 161-162. Dr. Ray works with states, municipalities and the federal government on program or system evaluations of community mental health systems and overall systems of institutional care. Tr. 8/10/00, pp. 161-162. Dr. Ray has worked with the Commission on Mental Health Services for the District of Columbia. Tr. 8/10/00, pp. 163-164. She is also working in Tennessee monitoring compliance with a settlement agreement in a class action suit, and in Louisiana monitoring a private psychiatric facility's compliance with federal regulations. Tr. 8/10/00, p. 164. Dr. Ray serves as a consultant to the state of Ohio in developing its quality assurance and risk management system. Tr. 8/10/00, p. 164. Dr. Ray testified extensively about all areas of safety at GPW Memorial Hospital, including the provision of basic custodial care, environmental conditions and safety, patient supervision and appropriate use of restraints and seclusion, and concluded that the State substantially departed from professional standards for providing protection and safety.(5)

Martha Hodge testified for the United States as an expert on discharge planning, case management and community mental health services. Tr. 8/14/00, pp. 51-52. Hodge has worked in the field of mental health for over 30 years, and is a consultant for state agencies in implementing and providing services for persons with mental disabilities discharged into community placements. Tr. 8/14/00, pp. 44-45. In the late-1970's, Hodge worked as the first Community Support Director in the state of Georgia, and then at the Georgia Regional Hospital in Atlanta where she was engaged in discharge planning efforts. Tr. 8/14/00, pp. 47-49. Hodge evaluated the discharge planning practices at GPW Memorial Hospital and concluded that hospital practices were substantially below professional standards. Tr. 8/14/00, p. 52.(6)

Raymond Brien, who has worked as a community mental health administrator and provider for over 30 years, also testified for the United States. Tr. 8/17/00, pp. 10-13. Upon reviewing the State's provision of community mental health services, Brien determined that the services "represent[] a substantial departure from professional standards." Tr. 8/17/00, p. 15.

Pamela Hyde testified as an expert in administering mental health care systems. Tr. 8/21/00, pp. 31, 33. Hyde is a senior consultant who works with states and local governments in improving their services for people with mental illness. Tr. 8/21/00, p. 18. She serves on the board of the American College of Mental Health Administration, Tr. 8/21/00, p. 20, and is co-authoring a chapter in a textbook on the role of state and local governments in providing supported employment services for adults with mental illness. Tr. 8/21/00, p. 21. The Governor of Ohio appointed Hyde to serve as the director of the Ohio Department of Mental Health, Tr. 8/21/00, p. 22, as well as Director of the State's Department of Human Services. Tr. 8/21/00, p. 23. Hyde testified that Florida's community mental health system could, with some reasonable modifications, provide "better services and a better system for assuring that people are not unreasonably segregated and isolated," Tr. 8/21/00, p. 50, and that the State does not have a "comprehensive and effective[] plan" to guard against such segregation. Tr. 8/21/00, p. 51. Hyde testified further that improvements in planning, resource management, accountability mechanisms, and service array would "greatly enhance [the State's] capacity to serve" GPW patients in community placements. Tr. 8/21/00, p. 52.

Another witness for the United States at trial was Dr. Robert Constantine, president of the Florida Council for Community Mental Health, a nonprofit community health organization. Tr. 8/22/00, p. 112. He has extensive experience working for the Florida government in administering community services for persons with disabilities, and as a district administrator with the Department of Health and Rehabilitative Services where he had supervisory authority over GPW Memorial Hospital. Tr. 8/22/00, pp. 110-111. Dr. Constantine testified about various inadequacies in the state's provision of community services and programs.(7)

While the United States did not win, its case clearly was not "so lacking in arguable merit as to be groundless or without foundation."Sullivan, 773 F.2d at 1189; see alsoUnited Statesv.Crosby, 59 F.3d 1133, 1137 (11th Cir. 1995). For instance, even though this Court held that the State's administration of GPW Hospital did not violate the Constitution or the ADA, it noted that the State's care and safety, treatment, programs, and services provided to hospital patients could be improved in some areas. See R. 1319, Order at 4 (more nurses would be "ideal"); Order at 16 (some "patients' discharge plans failed to comply with hospital policy"); Order at 19 ("there was evidence of poorly operated [assisted living facilities]"); Order at 37 (some GPW community patients "end up in less than desirable circumstances"). Moreover, this Court agreed with the United States as to the legal framework that should be employed in evaluating CRIPA allegations. Order at 23-29.

Courts have denied fees to successful defendants when, as in this case, the Government has adduced some probative evidence that civil rights laws have been violated, even though not enough to prevail at trial. SeeUnited Statesv.Mississippi, 921 F.2d 604, 609 (5th Cir. 1991) (denial of fees appropriate where "the United States' evidence * * * was valid, but merely insufficient"). In these cases, courts took cognizance ofChristiansburg's warning against equating a losing case with a frivolous one and denied fees to defendants. SeeLeBeauv.Libbey-Owens-Ford Co., 799 F.2d 1152, 1160-1161 (7th Cir. 1986), cert. denied, 484 U.S. 815 (1987) (citingChristiansburg, 434 U.S. at 422). Moreover, the Eleventh Circuit has noted that a plaintiff's civil rights claim is not "groundless or without foundation for the purpose of an award of fees in favor of the defendants when the claims are meritorious enough to receive careful attention and review."Busbyv.City of Orlando, 931 F.2d 764, 787 (11th Cir. 1991),O'Nealv.DeKalb County, 851 F.2d 653, 658 (11th Cir. 1988). In view of the expert evidence that the United States presented at trial in support of its allegations, and the fact that the district court "held a full-blown trial on the merits" (Sullivan, 773 F.2d at 1189), there is no basis for this court to find that the suit against the State was frivolous, groundless or without foundation.

III

THE STATE IS NOT ENTITLED TO EXPERT WITNESS FEES

The State seeks payment of expert witness fees in the amount of $386,575 as part of its costs. R. 1351, State's Memo at 36. The payment of fees for expert witnesses is not permitted under CRIPA.

When Congress waives the United States' sovereign immunity from money judgments, courts "must construe waivers strictly in favor of the sovereign * * * and not enlarge the waiver 'beyond what the language requires.'"Library of Congressv.Shaw, 478 U.S. 310, 318 (1986). InWest Virginia Univ. Hosps., Inc.v.Casey, 499 U.S. 83 (1991), the Supreme Court strictly construed the attorney's fee provision of 42 U.S.C. 1988(b), and held that fees for services rendered by experts in civil rights litigation may not be shifted to the losing party as part of a reasonable attorney's fee. The Court observed that "[t]he record of statutory usage demonstrates * * * that attorney's fees and expert fees are regarded as separate elements of litigation cost," and that Section 1988 refers only to "attorney's fees."Id.at 88.(8)See,e.g.,Swansv.City of Lansing, 65 F. Supp. 2d (W.D. Mich. 1998) (relying onCasey, the district court holds that "reimbursement for expert witness fees * * * is not available pursuant to Section 1988"). Like Section 1988, CRIPA's fee provisions give courts discretion to award attorney's fees, and do not refer to the awarding of fees for expert witnesses. Thus CRIPA does not provide for payment of expert witness fees to the State.

Section 1920 of Title 28 sets out specific expenses that may be taxed as costs by a federal court. These expenses include "fees and disbursements for * * * witnesses." 28 U.S.C. 1920(3). However, the expert witness fees sought by the State in this case are not recoverable as costs under that provision. An award of witness fees under 28 U.S.C. 1920(3) is limited by 28 U.S.C. 1821, the basic provision for payment of witness fees.United States Steel, LLCv.Tieco, Inc., 261 F.3d 1275, 1294 n.23 (11th Cir. 2001);Ageloffv.Delta Airlines, Inc., 860 F.2d 379, 390 (11th Cir. 1988). Under Section 1821, courts may award witnesses a fee of $40 per day for attendance at court or to take a deposition (28 U.S.C. 1821(b)); a subsistence allowance when an overnight stay is required for such attendance (28 U.S.C. 1821(d)(1)); and any normal travel expenses to facilitate that attendance (28 U.S.C. 1821(c)). See alsoKiviv.Nationwide Mut. Ins. Co.,695 F.2d 1285, 1289 (11th Cir. 1983) ("[u]nder * * * 28 U.S.C. 1821, the district court had no authority to tax costs for compensation to an expert witness in excess of the statutory attendance per day, mileage and subsistence allowances"). The expert witness fees sought by the State are thus not recoverable under either 28 U.S.C. 1920 or 28 U.S.C. 1821.

CONCLUSION

For the foregoing reasons, the State's Petition for Attorneys' Fees and Expenses should be denied.

Respectfully submitted,

RALPH F. BOYD, JR.
Assistant Attorney General

STEVEN H. ROSENBAUM
Chief, Special Litigation Section
JUDITH C. PRESTON
Special Counsel, Special Litigation Section
VERLIN H. DEERINWATER
JOSEPH R. ZOGBY
AILEEN M. BELL
LISA WILSON EDWARDS
Attorneys
United States Department of Justice
Civil Rights Division
Special Litigation Section
P.O. Box 66400
Washington, D.C. 20035-6400
(202) 514-5695
Fax No. (202) 514-8490
 
 

CERTIFICATE OF SERVICE

I hereby certify that a copy of the Brief For The United States Opposing Liability For Defendants' Attorneys' Fees And Expenses was sent by overnight Federal Express delivery, on this 29th day of January, 2002, to the following counsel of record:

Thomas York, Esq.
Victor Stabile, Esq.
Dilworth Paxson LLP
305 North Front Street, Suite 403
Harrisburg, PA 17101-1236

Mark S. Dunn, Esq.
Assistant Attorney General
Office of the Attorney General
The Capitol, PL-01
Tallahassee, FL 32399-1050

James K. Green, Esq.
One Clearlake Centre, Suite 1602
250 Australian Avenue South
West Palm Beach, FL 33401

Peter Nimkoff, Esq.
Advocacy Center for Persons with Disabilities
2671 Executive Center Circle W
Tallahassee, FL 32301

Steven J. Schwartz, Esq.
Center for Public Representation
22 Green Street
Northhampton, MA 01060

Steven Hanlon, Esq.
Holland & Knight
Nations Bank Building, Suite 600
Tallahassee, FL 32301

Michael J. Dale, Esq.
Nova University
Shepard Broad Law Center
3305 College Avenue
Fort Lauderdale, FL 33314
 

Lisa Wilson Edwards
 
 
 
 
 
 
 
 
 
 
 

1. "R. __, ____ at __" refers to numbered documents listed in the District Court's docket sheet, the name of the document, and the page number. "R. 1319, Order at __" refers to the District Court's Order and Opinion issued in this case on June 28, 2001. Hereinafter, citations to the District Court's June 28, 2001 Order will be referred to as "Order at __". "Tr. __, p. __" refers to the date and pages of the transcribed proceedings held by the District Court from August 7, 2000 to September 8, 2000. "R. 1351, State's Memo at __" refers to pages in the State's Memorandum Of Law In Support of Application for Award of Attorney's Fees and Expenses Against the United States, filed with this Court on September 13, 2001.

2. On May 18, 1990, the District Court, with the consent of the parties, entered an order appointing a monitor to advise the parties and the Court on the State's compliance with the consent decree. R. 200, Order. The order authorized the State's payment of legal fees and expenses to plaintiffs associated with monitoring the State's compliance with the consent decree. R. 200, Order at 18-19.See alsoMiller Frank Johnsonv.G. Pierce Wood Memorial Hospital, Case Nos. 99-13458, 00-10695 (11th Cir., June 27, 2001) at 6, n.* (unpublished opinion) ("Defendant * * * concede[s] that it was responsible for fees related to monitoring activities").

3. Tr. 8/8/00, pp. 49-52; U.S. Ex. 213 at 6-13, 57 (Geller) (GPW patients have been determined by Florida to be dangerous to self or others; as such staff need to provide supervision and know patients' whereabouts; in review of all GPW wards during July 1999, the inability of staff in charge to identify the whereabouts of all patients for whom they were responsible was a substantial departure from accepted professional practice.); U.S. Ex. 213 at 15 (Geller) (staff's lack of awareness of patients' locations built into GPW's way of operating; no adequate system for keeping track of patients; safety checks do not require face checks for large blocks of time during the day); Tr. 8/8/00, pp. 53-55; U.S. Ex. 151 at 20 (Geller) (GPW fails to have sufficient psychiatrists to meet its own ratio of one psychiatrist per ward which is necessary for adequate psychiatric treatment; use oflocum tenensphysicians does not provide continuity of care, exacerbated by poor record keeping); Tr. 8/8/00, pp. 55-57 (Geller) (failure to have psychiatrist on-site during off hours, nights, weekends, and failure to have a rotating backup system poses danger to patients and is a substantial departure from professional practices);Tr. 8/8/00, pp. 49-52, 105-110; U.S. Ex. 213 at 6-13, 44, U.S. Ex. 182A (Geller) (patient supervision is a major safety issue at GPW).

4. Tr. 8/9/00, p. 143 (Jaeger) (importance of assessments); Tr. 8/9/00, p. 143 (referencing professional standards for assessment from experience, JCAHO, and GPW policy); Tr. 8/9/00, p. 158 (Jaeger) (assessments do not comport with standards, including GPW's own policies); Tr. 8/9/00, pp. 159-162 (Jaeger) (no neuropsychological assessments even where need clearly indicated, rehabilitation assessments provided "virtually no useful information," psychological and comprehensive assessments contradicting and unacceptable; Tr. 8/9/00, pp. 165-172 (examples of poor assessments); Tr. 8/9/00, pp. 182-190 (Jaeger) (describing protocol auditors' findings over a period of years that most or all assessments were inadequate or partially inadequate); U.S. Ex. 216 at 7 (chart of protocol auditors' findings); U.S. Ex. 130 (meeting minutes indicating auditors' concerns with assessments same as Jaeger's); Tr. 8/9/00, pp. 192-194 (Jaeger) (discussing importance of treatment plans and the applicable standards, including JCAHO and GPW policy); Tr. 8/9/00, pp. 193, 195 (Jaeger) (review demonstrated GPW treatment plans not adequate); Tr. 8/9/00, pp. 194-195 (HCFA survey found treatment plan deficiencies); Tr. 8/9/00, pp. 169-172, 195-215; Tr. 8/10/00, pp. 7-19 (Jaeger) (examples of treatment plans that bear no relation to patient needs for rehabilitative treatment, including no attempt to prepare for daytime activity after discharge); Tr. 8/9/00, pp. 142-143 (Jaeger) (psycho-social rehabilitation designed for seriously and persistently mentally ill persons and has helped maintain people in community who could not have lived in community without this model); Tr. 8/10/00, pp. 33-48, U.S. Ex. 216, pp. 16-18 (Jaeger) (Dr. Jaeger's observations and three studies demonstrated most patients not participating in therapeutic activities on-ward or off-ward, only 11% in rehabilitation activity during peak programming times); Tr. 8/10/00, pp. 54-56 (vocational activity on campus not linked to patient's need or community employment); Tr. 8/10/00, pp. 29-32 (Jaeger) (discussing JCAHO standards pertaining to rehabilitative treatment); Tr. 8/10/00, pp. 26-29 (Jaeger) (audit protocol department found discharge planning for individuals Dr. Jaeger reviewed inadequate).

5. Tr. 8/11/00, pp. 118-119 (Ray) (HCFA and JCAHO require psychiatric hospitals to provide ongoing patient supervision and ongoing monitoring of patients' clinical status); Tr. 8/11/00, pp. 96-100; U.S. Ex. 42 (Ray) (document prepared by GPW references same suicide hazards that were found by DOJ experts); Tr. 8/11/00, pp. 56-62 (Ray) (hospital fails to implement basic interventions to reduce the risk of harm, including accountable system for supervising patients, creating safe environment, providing more intensive supervision on wards with high risk patients; many examples of contraband on ward and unsafe objects such as lighters or matches); Tr. 8/11/00, pp. 56-62 (Ray) (HCFA and JCAHO require that wards be kept safe and the hospital must take action to ensure that patients are protected, especially patients at risk of hurting themselves or others); Tr. 8/11/00, p. 170 (Ray) (professional standards require review of major incidents and high risk residents; HCFA and JCAHO mandate that facilities have an effective quality assurance department that can identify patterns and trends and then take appropriate action); Tr. 8/11/00, p. 172; U.S. Ex. 236 a-d, U.S. Ex. 145 at 43-45 (Ray) (examples of recommendations made by quality assurance department but not implemented).

6. Tr. 8/14/00, pp. 69-70 (Hodge) (professional standards require planning upon admission, assessing and meeting needs, understanding preferences, involving individual, family, and community providers); Tr. 8/14/00, pp. 72-80 (Hodge) (discharge standards articulated in JCAHO); Tr. 8/14/00, pp. 80-82 (discharge standards articulated in HCFA regulations); U.S. Ex. 148 at 4; Tr. 8/14/00, pp. 147-148, 152-153 (Hodge); Tr. 8/14/00, 92-147 (Hodge) (discussing substantial departures in GPW discharge planning using patient examples.); Tr. 8/15/00, p. 95 (Hodge); Tr. 8/14/00, pp. 93-113, 134-147 (Hodge) (discussing several patients whose likelihood of success in community decreased by poor discharge planning); Tr. 8/14/00, p. 152 (Hodge) (research shows discharge plans more likely to lead to successful outcomes when patient participates in discharge planning; individual choice respected); Tr. 8/14/00, p. 95 (Hodge) (many re-hospitalizations of GPW patients could be avoided with adequate discharge planning); Tr. 8/14/00, pp. 93-150 (Hodge) (discussing discharge plans that decreased likelihood of successful community placement and exemplify problems with discharge planning).

7. Tr. 8/22/00, pp. 146-147, 158-169 (Constantine) (State should articulate policy regarding serving adults with mental illness, conduct needs assessment of people with serious mental illness, create plan, maximize available resources); Tr. 8/22/00, pp. 173-174 (Constantine) (inadequate funding for community health services and consequent inadequacies in services have resulted in increased numbers of persons with serious mental illness who are homeless or in jails and prisons); Tr. 8/22/00, pp. 163, 170 (Constantine) (it is possible and reasonable for the State to formulate, fund, and implement a plan to address inadequacies in mental health systems; such a plan could dramatically increase array and intensity of mental health services without "breaking the State's bank"); Tr. 8/22/00, pp. 153-158 (Constantine) (the State has not changed Medicaid rates since 1983; low rates are disincentive to serve adults with serious mental illness who are Medicaid eligible; State also has not changed Medicaid codes to reflect changes in treatment technology, therefore community service providers have difficulty responding to needs of patients).

8. After the Supreme Court's decision in Casey,supra, Congress amended 42 U.S.C. 1988, to include subsection (c) which authorizes a court to, in its discretion, "include expert fees as part of the attorney's fee." See Pub. L. 102-166, §§ 113(a)(2), added subsection c, 105 Stat. 1079. CRIPA was not so amended.

Updated August 6, 2015

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