Bradley et al v. Leavitt

Filing 79

ORDER denying 68 Motion for attorney fees. Signed by Judge Gregory A. Presnell on 6/7/2011. (ED)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
O RLANDO D IVISION
CARVONDELLA BRADLEY, JOYCE
ELAINE NIEVES, LARONDA
WILLIAMS, CHRIS CROWLEY,
DERRICK BURKE, CHARLES E. BURKE,
JR., GREG BURKE, CYNTHIA BURKE,
BEATRICE WELLS, KARL CROWLEY,
Plaintiffs,
-vs-

Case No. 6:07-cv-1690-Orl-31GJK

KATHLEEN SEBELIUS, Secretary, U.S.
Department of Health and Human Services,
Defendant.
______________________________________

ORDER
This matter comes before the Court without a hearing on the Plaintiffs’ First Amended
Motion for Award of Attorneys’ Fees and Costs (Doc. 68) and the response in opposition (Doc.
78) filed by the Defendant, Kathleen Sebelius, in her capacity as Secretary of the United States
Department of Health and Human Services (the “Secretary”). The Plaintiff seeks an award
pursuant to 28 U.S.C. § 2412(b), which provides that
Unless expressly prohibited by statute, a court may award reasonable fees and
expenses of attorneys, in addition to the costs which may be awarded pursuant to
subsection (a), to the prevailing party in any civil action brought by or against the
United States or any agency or any official of the United States acting in his or her
official capacity in any court having jurisdiction of such action. The United States
shall be liable for such fees and expenses to the same extent that any other party
would be liable under the common law or under the terms of any statute which
specifically provides for such an award.

The Plaintiffs seek an award based on the Secretary’s allegedly “vexatious,
oppressive, and recalcitrant conduct,” and further claim entitlement to an enhancement of
that award by use of a multiplier. (Doc. 68 at 6). More particularly, the Plaintiffs argue
that they seek an award “to counter the bad faith” of HHS. (Doc. 68 at 8). See also
Maritime Management, Inc. v. United States, 242 F.3d 1326, 1331-32 (11th Cir. 2001)
(award of fees under Section 2412(b) proper where government has conducted litigation in
bad faith, vexatiously, wantonly, or for oppressive reasons). But there was no bad faith
here. The Secretary acted in conformity with the department’s long-held legal position, one
supported by decisions from other Courts of Appeal. The Secretary’s position in this
particular case was also supported by most of the judges who heard this dispute.
Ultimately, two of the three judges on the Eleventh Circuit Court of Appeals agreed with
the Plaintiffs on a question of first impression. But neither of those judges suggested that
the Secretary acted in bad faith in litigating this case, and the Plaintiffs have not provided
any basis for such a conclusion in their motion. Accordingly, it is hereby
ORDERED that the Plaintiffs’ First Amended Motion for Award of Attorneys’
Fees and Costs (Doc. 68) is DENIED.
DONE and ORDERED in Chambers, Orlando, Florida on June 7, 2011.

Copies furnished to:
Counsel of Record
-2-

Unrepresented Party

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