Alabama Disabilities Advocacy Program v. SafetyNet YouthCare, Inc.

Filing 89

ORDER, GRANTING IN PART and DENYING IN PART, ADAP's 80 Motion for Reconsideration as set out in Order. Additionally, to ensure ongoing compliance to DHR and facilities situated similarly to SafetyNet, the Court ATTACHES to this Order EXHIBIT A. (Doc. 88, Exh. 1). Signed by Judge Callie V. S. Granade on 2/10/2015. (Attachment: # 1 Exhibit A - Access Protocol) (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
ALABAMA DISABILITIES
ADVOCACY PROGRAM,
Plaintiff,
vs.
SAFETYNET YOUTHCARE, INC.,
Defendant and Third-Party
Plaintiff,
vs.
ALABAMA DEPARTMENT OF
HUMAN RESOURCES,
Third-Party Defendant.

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Civil Action No. 13-0519-CG-B

ORDER
This matter is before the Court on Alabama Disabilities Advocacy
Program’s (“ADAP”) motion to reconsider the order denying attorneys’ fees
and costs, and requesting reasonable attorneys’ fees and costs (Doc. 80),
SafetyNet Youthcare Inc. (“SafetyNet”) and Alabama Department of Human
Resources (“DHR”) responses to the motion (Docs. 82, 83), ADAP’s reply (Doc.
84), and SafetyNet’s surreply (Doc. 87). For the reasons set forth herein, the
motion is due to be GRANTED IN PART and DENIED IN PART.
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BACKGROUND
Each party in this action filed a motion for summary judgment, asking
the Court to determine whether ADAP had federal authorization to access
the moderate program for male youth at the SafetyNet facility. (Docs. 62, 63,
64). The Court granted the motion for summary judgment filed by ADAP,
finding federal law grants ADAP the right to access the program, and denied
the motions filed by SafetyNet and DHR. (Doc. 78, p. 28). In the order
granting summary judgment for ADAP, the Court denied its request for
attorneys’ fees and costs. (Doc. 78, pp. 28 – 29). The Court denied the request
because ADAP did not raise an applicable exception to the American Rule,
which states litigants are generally expected to bear their own attorneys’ fees
and costs. (Doc. 78, p. 29).
In its motion for reconsideration, ADAP raises several arguments to
support an award of attorneys’ fees and costs. First, ADAP relies on Federal
Rule of Civil Procedure 54(d)(1) to show it is entitled to costs. (Doc. 80, p. 2).
Second, ADAP asserts it acted as a private attorney general through this
action to ensure that youth receiving treatment in the moderate program are
informed of their right to be free from abuse and neglect and to monitor
conditions in that program. (Doc. 80, p. 2). Third, ADAP argues SafetyNet
acted in bad faith, and bad faith is an established exception to the American
Rule. (Doc. 80, p. 2). Finally, ADAP contends the Declaratory Judgment Act
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and principles of equity entitle it to attorneys’ fees and costs in this matter.
(Doc. 80, p. 2). ADAP then proceeds to document and explain its requested
fees and costs. (Doc. 80, Exh. 1, pp. 7 – 14).
DHR responded to ADAP’s motion, noting that ADAP seeks only
attorneys’ fees and costs from SafetyNet. (Doc. 83, p. 2). DHR also “adopts the
arguments by SafetyNet in its objection (Doc. 82) to ADAP’s Motion.” (Doc.
83, p. 2). In its response, SafetyNet argues ADAP is not entitled to fees under
a private attorney general framework (Doc. 82, p. 2), it did not act in bad
faith (Doc. 82, p. 3), and ADAP’s request for attorneys’ fees is excessive and
unreasonable. (Doc. 82, p. 7). These arguments are addressed below.
RECONSIDERATION STANDARD
“In the interests of finality and conservation of scarce judicial
resources, reconsideration of an order is an extraordinary remedy and is
employed sparingly.” Gougler v. Sirius Products, Inc., 370 F. Supp. 2d 1185,
1189 (S. D. Ala. 2005) (citations omitted); Spellman v. Haley, 2004 WL
866837, *2 (M.D. Ala. Feb. 22, 2002) (“litigants should not use motions to
reconsider as a knee-jerk reaction to an adverse ruling”) (citations omitted).
The grant or denial of a motion to reconsider is left to the discretion of the
trial court. Chapman v. AI Transport, 229 F.3d 1012, 1023–24 (11th Cir.
2000) (en banc). Such a motion may not be used as a vehicle to inject new
arguments into the underlying motion, or to submit evidence previously
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available but not properly presented on the underlying motion. Mays v. U.S.
Postal Service, 122 F.3d 43, 46 (11th Cir. 1997). Nor may it be used to
“relitigate old matters.” Wilchombe v. TeeVee Toons, Inc., 555 F.3d 949, 957
(11th Cir. 2009) (internal quotes omitted). Instead, “[a] motion to reconsider
is only available when a party presents the court with evidence of an
intervening change in controlling law, the availability of new evidence, or the
need to correct clear error or manifest injustice.” Gibson v. Mattox, 511 F.
Supp. 2d 1182, 1185 (S.D. Ala. 2007) (citation omitted).
ANALYSIS
ADAP does not argue that an intervening change in controlling law or
the availability of new evidence supports its motion for reconsideration.
Instead, ADAP implies the denial of attorneys’ fees and costs is a clear error
or manifest injustice. (Doc. 80, Exh. 1, pp. 3 – 6).
A. COSTS
The Court first reconsiders an award of costs pursuant to Federal Rule
of Civil Procedure 54(d)(1). Rule 54(d)(1) is straightforward. It provides, in
relevant part: “Unless a federal statute, these rules, or a court order provides
otherwise, costs—other than attorney’s fees—should be allowed to the
prevailing party.” Fed. R. Civ. P. 54(d)(1). The word “should” makes clear
that the decision whether to award costs ultimately lies within the sound
discretion of the district court. Marx v. Gen. Revenue Corp., 133 S. Ct. 1166,
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1172 (2013).1
Because Rule 54(d)(1) encourages awarding costs to the prevailing
party (costs “should be allowed”), and ADAP is the prevailing party in this
case, the Court reconsiders its earlier ruling and awards ADAP its reasonable
costs. Although the decision to award costs is discretionary with the Court, it
may only tax those items specifically enumerated in 28 U.S.C. § 1920, absent
alternative statutory authority. EEOC v. W & O, Inc., 213 F.3d 600, 620 (11
Cir. 2000). The particular items that may be taxed as costs are set out in 28
U.S.C. § 1920 as follows: (1) Fees of the clerk and marshal; (2) Fees for
printed or electronically recorded transcripts necessarily obtained for use in
the case; (3) Fees and disbursements for printing and witnesses; (4) Fees for
exemplification and the costs of making copies of any materials where the
copies are necessarily obtained for use in the case; (5) Docket fees under
section 1923 of this title; (6) Compensation of court appointed experts,
compensation of interpreters, and salaries, fees, expenses, and costs of special
interpretation services under section 1828 of this title.
Here, ADAP seeks an award of costs for its depositions and filing fees.
(Doc. 80, Exh. 1, pp. 12 – 13). For deposition costs, ADAP seeks $3,286.95
(Doc. 80, Exh. 1, p. 13), which includes $2,821.95 for deposition transcripts as

Though not an issue here, a statute may nevertheless limit a court’s
discretion in several ways, and it need not expressly state that it is displacing
Rule 54(d)(1) to do so. For instance, a statute providing that “plaintiffs shall
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invoiced by Freedom Court Reporting. (Doc. 84, p. 9, Exh. 1). Taxation of
deposition expenses is authorized by 28 U.S.C. § 1920(2). Id. However,
“[w]here the deposition costs were merely incurred for convenience, to aid in
thorough preparation, or for purposes of investigation only, the costs are not
recoverable.” Id. (citation omitted). Whether the costs for a deposition are
taxable depends on “whether the deposition was wholly or partially
necessarily obtained for use in the case.” Id. at 621 (citation omitted).
The Court finds the depositions were not necessary in this case;
therefore the costs are not recoverable. A central issue involved whether
SafetyNet’s moderate program treated youth with disabilities and behavioral
health care needs (Doc. 80, Exh. 1, p. 13), which ADAP proved through
affidavits, interrogatories, and other means. Indeed, ADAP did not attach
any deposition testimony to its motion for summary judgment, its
supplement to that motion, or its response. (Doc. 63, Exhs. 1 – 10, Doc. 70,
Exh. 1, Doc. 73, Exhs. 1 – 4). Nor did ADAP rely on any deposition testimony
in its motion. This shows the depositions were merely for purposes of
investigation and thorough preparation. Accordingly, ADAP’s request for
deposition costs is DENIED.

not be liable for costs” is contrary to Rule 54(d)(1) because it precludes a court
from awarding costs to prevailing defendants. Id. 133 S. Ct. at 1173.
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ADAP also seeks $350 in filing fees. (Doc. 80, Exh. 1, p. 13, Doc. 84, p.
9). Filing fees are clearly allowed under 28 U.S.C. § 1920. ADAP’s request for
filing fees is GRANTED.
ADAP also seeks travel expenses pursuant to 42 U.S.C. § 1988.2 (Doc.
80, Exh. 1, p. 12). Notably, 42 U.S.C. § 1988 provides for the discretionary
awarding of attorneys fees in certain federal cases, which may include
reasonable travel expenses. Cullens v. Georgia Dep’t of Transp., 29 F.3d
1489, 1494 (11th Cir. 1994) (citing Dowdell v. City of Apopka, 698 F.2d 1181,
1192 (11th Cir. 1983)). ADAP did not bring this action under Section 1988, or
any of the statutes cited within that provision. ADAP filed its complaint
seeking declaratory judgment and injunctive relief to enforce ADAP’s
authority pursuant to the Protection and Advocacy for Mentally Ill
Individuals Act (“PAMII”), 42 U.S.C. §§ 10801 – 10851 (2012); the Protection
and Advocacy for Individuals with Developmental Disabilities statutes

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42 U.S.C.A. § 1988 provides:
In any action or proceeding to enforce a provision of sections
1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of
Public Law 92-318 [20 U.S.C.A. § 1681 et seq.], the Religious
Freedom Restoration Act of 1993 [42 U.S.C.A. § 2000bb et seq.],
the Religious Land Use and Institutionalized Persons Act of
2000 [42 U.S.C.A. § 2000cc et seq.], title VI of the Civil Rights
Act of 1964 [42 U.S.C.A. § 2000d et seq.], or section 13981 of this
title, 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, except that in any action brought against a judicial
officer for an act or omission taken in such officer’s judicial
capacity such officer shall not be held liable for any costs,
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(“PADD”), 42 U.S.C. §§ 15041 – 15045 (2012); and the Protection and
Advocacy of Individual Rights statute (“PAIR”), 29 U.S.C. § 794e (2012). (Doc.
1, pp. 2, 10 – 12). Accordingly, ADAP’s request for travel expenses is
DENIED.
B. ACTING AS PRIVATE ATTORNEY GENERAL FOR
ATTORNEYS’ FEES
ADAP argues it acted as a private attorney general vindicating a policy
Congress considers a high priority. (Doc. 80, Exh. 1, p. 2). ADAP relies on two
civil rights cases, and dicta from a concurring opinion in a Seventh Circuit
case to support its argument. (Doc. 80, Exh. 1, pp. 2 – 3). The statutes and
regulations underlying this case, however, do not support awarding
attorneys’ fees under a private attorney general theory.
In drafting and enacting legislation, Congress has the power and
judgment to pick and choose among its statutes and to allow attorneys’ fees
under some, but not others. Without legislative guidance, it is difficult for
courts to consider some statutes important and others unimportant and to
allow attorneys’ fees only in connection with the former. Alyeska Pipeline
Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 263 – 64 (1975). Certainly the
protection and advocacy of vulnerable populations is important, which

including attorney’s fees, unless such action was clearly in
excess of such officer's jurisdiction.
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Congress recognized when it funded agencies in each state to ensure the
rights of such individuals. Nevertheless, the Supreme Court makes clear:
Courts are not free to fashion drastic new rules with respect to
the allowance of attorneys’ fees to the prevailing party in federal
litigation or to pick and choose among plaintiffs and the statutes
under which they sue and to award fees in some cases but not in
others, depending upon the courts’ assessment of the importance
of the public policies involved in particular cases. Nor should the
federal courts purport to adopt on their own initiative a rule
awarding attorneys’ fees based on the private-attorney-general
approach when such judicial rule will operate only against
private parties and not against the Government. Id. at 269.
Heeding this advice, the Court does not find that an award of
attorneys’ fees under a private attorney general approach proper in
this case.
C. BAD FAITH EXCEPTION
ADAP argues the Declaratory Judgment Act (“DJA”) supports
awarding it attorneys’ fees as “further necessary and proper relief.” (Doc. 80,
Exh. 1, p. 2). Section 2202 of the Federal DJA provides that “[f]urther
necessary or proper relief based on a declaratory judgment or decree may be
granted ... against any adverse party whose rights have been determined by
such judgment.” Section 2202 thus accords a district court some measure of
flexibility to enter subsequent orders to effectuate the intent of an earlier §
2201(a) judgment. See, e.g., Burford Equip. Co., Inc. v. Centennial Ins. Co.,
857 F. Supp. 1499, 1502 (M.D. Ala. 1994). Further, the provision “has been

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interpreted as providing for ‘supplemental’ relief which may be granted in a
proceeding [even] subsequent to the original [declaratory judgment].” Horn &
Hardart Co. v. Nat’l R.R. Passenger Corp., 659 F. Supp. 1258, 1261 (D.D.C.
1987), aff’d 843 F.2d 546 (D.C. Cir.), cert. denied, 488 U.S. 849 (1988).
On its face, the DJA does not mention fee shifting. Federal courts
follow the American Rule in the absence of fee-shifting congressional
legislation. See Alyeska Pipeline Serv. Co., 421 U.S. at 247. However, an
award of attorneys’ fees under 28 U.S.C. § 2202 is permitted pursuant to a
court’s equitable powers in “cases of bad faith, vexation, wantonness, or
oppression relating to the filing or maintenance of the action.” Mercantile
Nat’l Bank v. Bradford Trust Co., 850 F.2d 215, 218 (5th Cir. 1988); see also
Kreager v. Solomon & Flanagan, P.A., 775 F.2d 1541, 1543 (11th Cir. 1985)
(discussing bad faith exception for acts preceding and during litigation). A
finding of bad faith is warranted where an attorney knowingly or recklessly
raises a frivolous argument. Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir.
1998). A party also demonstrates bad faith by delaying or disrupting the
litigation or hampering enforcement of a court order. Id. In assessing whether
an award is proper under the bad faith standard, “the inquiry will focus
primarily on the conduct and motive of a party, rather than on the validity of
the case.” Rothenberg v. Security Mgmt Co., Inc., 736 F.2d 1470, 1472 (11th
Cir. 1984).
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When a court awards attorneys’ fees based on a finding of bad faith,
the “underlying rationale of fee shifting is, of course, punitive.” Chambers v.
NASCO, Inc., 501 U.S. 32, 53 (1991). Thus the court must exercise its
inherent powers to award sanctions with restraint and discretion. Barnes,
158 F.3d at 1215. A primary aspect of that discretion is the ability to fashion
an appropriate sanction for conduct that abuses the judicial process.
Chambers, 501 U.S. at 44–45 (internal citation omitted).
The record does not show SafetyNet acted in bad faith during this
litigation, or that it raised frivolous defenses knowingly and recklessly.
SafetyNet recognized it was opening itself up to litigation, but that does not
necessarily mean it proceeded in bad faith. (Doc. 80, Exh. 1, p. 4). The record
instead shows SafetyNet vigorously and timely defended itself alongside
DHR. (Doc. 87, pp. 2 – 3). DHR raised a novel, though misguided argument,
which SafetyNet followed. Actors’ Equity Ass’n v. Am. Dinner Theatre Inst.,
802 F.2d 1038, 1045 (8th Cir. 1986) (novel arguments should not be
sanctioned absent a showing of bad faith). DHR argued primarily “[t]his case
involves a fundamental difference in the concept and purpose of moderate
residential services between ADAP and [DHR]. [DHR] maintains that the
moderate services program is not accessible to ADAP.” (Doc. 65, p. 4).
SafetyNet argued it was caught between its state licensing authority and
ADAP. Thus it could either comply with ADAP and violate the orders of
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DHR, or follow the advice of DHR and violate federal law. (Doc. 62, Exh. 1, p.
7). SafetyNet, DHR, and ADAP had an unsuccessful and seemingly
contentious settlement conference. (Doc. 80, Exh. 1, p. 6). But these defenses
and actions do not amount to bad faith.
ADAP also unfortunately sent SafetyNet mixed messages when it
focused primarily on the intensive program at a training session in April
2010, and then changed its stance later to include the moderate program.
(Doc. 66, Exh. 6, pp. 6 – 8, 84 – 134). Although the Court clearly agrees ADAP
can monitor the moderate program, the record shows there was some
confusion among all of the parties regarding initial oversight of the moderate
program. SafetyNet complied with ADAP when ADAP sought access to and
monitored the intensive program. SafetyNet did not violate or ignore any
court orders. Following the summary judgment stage, SafetyNet and ADAP
timely submitted their access protocol as required by this Court. (Docs. 78,
88). In sum, the Court does not find SafetyNet acted in bad faith.
For the foregoing reasons, the Court also finds principles of equity do
not favor awarding ADAP its attorneys’ fees. ADAP’s request for attorneys’
fees is therefore DENIED. Because the Court declines to award attorneys’
fees, there is no need to determine which fees are reasonable or excessive.
ACCESS PROTOCOL
ADAP states that it is “concerned that when it might seek to access
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another one of DHR’s contract facility types, DHR may choose, instead, to
litigate the access questions at play in this litigation, thus further draining
ADAP of valuable resources to fulfill its Congressional mandate.” (Doc. 80,
Exh. 1, p. 6). Although this may be a concern going forward, it is not a
concern that requires a punitive award of attorneys’ fees against SafetyNet in
this case. ADAP now has an Eleventh Circuit ruling, Ala. Disabilities
Advocacy Program v. J.S. Tarwater Developmental Ctr., 97 F.3d 492 (11th
Cir. 1996), and a lengthy District Court order on its side, Ala. Disabilities
Advocacy Program v. SafetyNet Youthcare, Inc., No. CIV.A. 13-0519-CG-B,
2014 WL 7012710, (S.D. Ala. Dec. 12, 2014). Should DHR unlawfully block
ADAP access again, there is now precedent to support an award of attorneys’
fees or other appropriate sanctions. See Fairley v. Patterson, 493 F.2d 598,
605 (5th Cir. 1974) (“When a suit alleging violation of clearly established law
in a particular area is filed, and the defendants, in the face of evident
violation of this law, persist in forcing the plaintiffs to expend efforts in
preparing and/or conducting a trial, then attorneys’ fees may appropriately
be awarded.”) (citations omitted). See also Wrenn v. Gould, 808 F.2d 493, 505
(6th Cir. 1987) (a litigant’s prior record in court is relevant in determining
whether bad faith warrants awarding attorneys’ fees).
Additionally, to ensure ongoing compliance and to provide notice to
DHR and facilities situated similarly to SafetyNet, the Court ATTACHES to
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this Order EXHIBIT A. (Doc. 88, Exh. 1). Exhibit A is the access protocol
developed by SafetyNet and ADAP, which complies with this Court’s previous
order describing the broad remedial framework Congress established for the
protection and advocacy system. (Doc. 78). As a result, ADAP and DHR may
use Exhibit A as an example of a court-approved protection and advocacy
access agreement.
CONCLUSION
After careful consideration, ADAP’s motion for reconsideration (Doc.
80) is GRANTED IN PART and DENIED IN PART. The Court concludes
its denial of reasonable costs to ADAP, the prevailing party, was error. ADAP
is GRANTED its filing fees for this litigation. The Court also concludes
ADAP is not entitled to attorneys’ fees under the DJA, a private attorney
general theory, or the bad faith exception to the American Rule. Accordingly,
the Court finds its previous denial of attorneys’ fees did not amount to clear
error or manifest injustice, and ADAP’s request for such fees is DENIED.
Each party must bear its own fees related to the motion for reconsideration,
responses, and development of the access protocol.
DONE and ORDERED this 10th day of February, 2015.
/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE

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