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Case Name Kenny A. v. Perdue CW-GA-0001
Docket / Court 1:02-cv-01686 ( N.D. Ga. )
State/Territory Georgia
Case Type(s) Child Welfare
Public Benefits / Government Services
Attorney Organization Children's Rights, Inc.
Case Summary
The advocacy organization Children's Rights, Inc. filed this lawsuit in June 2002 against the state of Georgia and the Departments of Family and Children Services (DFCS) in Fulton and DeKalb Counties, on behalf of children in foster care in Fulton and DeKalb counties. Plaintiffs alleged violations ... read more >
The advocacy organization Children's Rights, Inc. filed this lawsuit in June 2002 against the state of Georgia and the Departments of Family and Children Services (DFCS) in Fulton and DeKalb Counties, on behalf of children in foster care in Fulton and DeKalb counties. Plaintiffs alleged violations of the Georgia State Constitution, the First, Ninth, and Fourteenth Amendments to the United States Constitution, the Adoption Assistance and Child Welfare Act of 1980, the Medicaid Act, and the Multiethnic Placement Act of 1994. The complaint alleged that children did not receive necessary treatment and services while spending months in emergency shelters, experienced abuse and neglect as a result of an insufficient number of caseworkers, and received inadequate health care and emotional services while in foster care. Plaintiffs originally brought suit in Georgia state courts, but the stated removed the case to federal court because the cause of action included federal laws.

Judge Marvin Shoob of the U.S. District Court for the Northern District of Georgia granted plaintiffs' motion for class certification in August 2003, and at the same time granted the defendants' motion to dismiss in part regarding certain claims about the operation of emergency shelters, because the shelters had been closed. The Court denied a later motion for summary judgment filed by the counties and found that children in foster care in Georgia have a state statutory and constitutional right to effective counsel in child abuse and neglect proceedings. Kenny A. v. Perdue, 356 F. Supp. 2d 1353 (N.D. Ga. 2005).

In July 2005, Georgia agreed to a settlement that limited the caseload of case workers and required the state to meet benchmarks in numerous areas of service to children, including medical, dental, and mental health screenings and treatment. The court assigned two independent monitors to report on Georgia's progress towards meeting the benchmarks.

The county defendants entered into a consent decree with plaintiffs in May 2006; it approved the right-to-counsel settlements and established independent monitors for each county until the counties remain in substantial compliance for a continuous eighteen month period. The consent decrees established staffing requirements and caseloads for child advocate attorneys, and other bureaucratic changes to how Fulton County manages its County Child Advocate Attorneys office. DeKalb County and Fulton County were released from federal oversight in October 2008 and April 2011, respectively, because they had improved the quality of representation provided to foster children.

In August 2008, the plaintiffs filed a contempt motion against the state, citing its failure to meet court-ordered requirements to place hundreds of children in permanent homes. The state and plaintiffs jointly filed an agreement to consult national welfare experts in order to review the cases of all children in the backlog and to place them in permanent homes. The court Monitor has made six-month reports on the Georgia's progress towards meeting benchmarks.

On November 2, 2015, the parties agreed to a joint stipulation and order to modify the consent decree. The original consent decree required two independent accountability agents, but the parties agree to reduce that to one agent.

On February 16, 2016, the independent monitor team submitted a report finding the State was still not compliant with the court-ordered benchmarks. On February 24, 2016, the case was transferred from Judge Shoob, who had had it since its inception in 2002, to Judge Thomas W. Thrash, Jr. It is ongoing.

In addition to the litigation regarding enforcement of the consent decree, this case also included extensive litigation regarding the award of attorney's fees to the plaintiffs. The consent decree with the State did not resolve the issue of attorney's fees and the parties had left that to the court to decide. The plaintiffs submitted a request for more than $14 million in attorney's fees. Half of that amount was based on their calculation of the lodestar (the number of hours spent working on the case multiplied by the attorneys' hourly rate). The other half was a fee enhancement for superior work and results. The defendants objected to the fee request, contending that some of the proposed hourly rates were too high, that the hours claimed were excessive, and that the enhancement would duplicate factors that were reflected in the lodestar amount.

On October 3, 2006, the district court awarded fees of approximately $10.5 million. 454 F.Supp.2d 1260 (N.D.Ga.2006). The court determined that the lodestar was $6 million and then enhanced that amount by 75% to account for superior performance and results. The defendants appealed this determination to the Eleventh Circuit.

After oral argument, a panel of the Eleventh Circuit affirmed the district court's award because it was not an abuse of discretion to award that amount of attorney's fees on July 3, 2008. 532 F.3d 1209 (2008). The eleventh circuit judges were divided over the district court's enhancement. The Eleventh Circuit denied the defendants' request for a rehearing en banc but was also divided over this ruling. The defendants petitioned the Supreme Court for a writ of certiorari seeking review solely as to the $4.5 million enhancement, which the Supreme Court granted. The Supreme Court heard oral argument on October 14, 2009.

Then, on April 21, 2010, the Supreme Court reversed the award of attorney's fees and remanded the case for further proceedings. The Supreme Court reaffirmed the rule that enhancements are permitted in extraordinary circumstances, but held that the district court had not provided proper justification for the enhancement it awarded in this case. The Supreme Court outlined standards for enhancements: 1) there is a strong presumption that the lodestar is sufficient; 2) factors subsumed in the lodestar calculation cannot be used as a ground for increasing an award above the lodestar; and 3) a party seeking fees has the burden of identifying a factor that the lodestar does not adequately take into account and proving with specificity that an enhanced fee is justified. The Supreme Court reversed and remanded because the District Court had not applied these standards. 559 U.S. 542 (2010).

Accordingly, on September 2, 2010, the Eleventh Circuit vacated the district court's order and judgment entered on October 3, 2006, awarding the plaintiffs attorney's fees, costs, and remanded the case for further proceedings consistent with the Supreme Court's decision and opinion. 616 F.3d 1230 (2010).

The parties submitted new briefs and the district court heard oral argument on the issue. On July 19, 2011, the district court held that plaintiffs were not entitled to an enhancement under the new guidelines established by the Supreme Court.

Elizabeth Homan - 10/08/2012
Frances Hollander - 02/21/2016
Jessica Kincaid - 04/19/2016

compress summary

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Issues and Causes of Action
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Affected Gender
Benefit Source
Constitutional Clause
Due Process
Freedom of speech/association
Content of Injunction
Implement complaint/dispute resolution process
Other requirements regarding hiring, promotion, retention
Crowding / caseload
Access to lawyers or judicial system
Classification / placement
Commitment procedure
Conditions of confinement
Emergency shelter
Family abuse and neglect
Foster care (benefits, training)
Government Services (specify)
Habilitation (training/treatment)
Neglect by staff
Placement in shelters
Public benefits (includes, e.g., in-state tuition, govt. jobs)
Quality of representation
Staff (number, training, qualifications, wages)
Timeliness of case assignment
Totality of conditions
Medical/Mental Health
Medical care, general
Medical care, unspecified
Type of Facility
Causes of Action 42 U.S.C. § 1983
Adoption Assistance Program, 42 U.S.C. § 670 et seq.
Ex parte Young (federal or state officials)
Title XIX of the Social Security (Medicaid) Act, 42 U.S.C §1396
Defendant(s) DeKalb County
Fulton County
Plaintiff Description A class of all Fulton and DeKalb County, Georgia foster children
Indexed Lawyer Organizations Children's Rights, Inc.
Class action status sought Yes
Class action status granted Yes
Prevailing Party Plaintiff
Public Int. Lawyer Yes
Nature of Relief Attorneys fees
Injunction / Injunctive-like Settlement
Source of Relief Litigation
Form of Settlement Court Approved Settlement or Consent Decree
Order Duration 2005 - n/a
Case Closing Year n/a
Case Ongoing Yes
Additional Resources
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Case Studies Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

  Making Child Welfare Work: How the R.C. Lawsuit Forged New Partnerships to Protect Children and Sustain Families
By: Bazelon Center for Mental Health Law (Bazelon Center)
Citation: (1998)
[ Detail ]

1:02−cv−01686 (N.D. Ga.) 02/24/2016
CW-GA-0001-9000 PDF | Detail
PACER [Public Access to Court Electronic Records]
General Documents
Opinion 08/13/2003 (218 F.R.D. 277) (N.D. Ga.)
CW-GA-0001-0013 PDF | WESTLAW| LEXIS | Detail
Document Source: Westlaw
First Amended Complaint 08/20/2003
CW-GA-0001-0002 PDF | External Link | Detail
Order 02/08/2005 (356 F.Supp.2d 1353) (N.D. Ga.)
CW-GA-0001-0014 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Consent Decree (State) 07/05/2005
CW-GA-0001-0001 PDF | External Link | Detail
Consent Decree (Fulton County) 02/13/2006
CW-GA-0001-0007 PDF | External Link | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Consent Decree (Dekalb County) 03/23/2006
CW-GA-0001-0008 PDF | External Link | Detail
Order 10/03/2006 (454 F.Supp.2d 1260) (N.D. Ga.)
CW-GA-0001-0015 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Period One Monitoring Report 11/03/2006
CW-GA-0001-0003 PDF | External Link | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Period Two Monitoring Report 06/18/2007
CW-GA-0001-0004 PDF | External Link | Detail
Period Three Monitoring Report 12/17/2007
CW-GA-0001-0005 PDF | External Link | Detail
Period Four Monitoring Report 05/14/2008
CW-GA-0001-0006 PDF | External Link | Detail
OPINION before Carnes, Wilson, and Hill (Circuit Judges) 07/03/2008 (532 F.3d 1209)
CW-GA-0001-0022 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Order 11/05/2008 (547 F.3d 1319)
CW-GA-0001-0016 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Memorandum Decisions 04/06/2009
CW-GA-0001-0012 PDF | Detail
Document Source: Westlaw
Opinion 04/21/2010 (559 U.S. 542)
CW-GA-0001-0011 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
Order 09/02/2010 (616 F.3d 1230)
CW-GA-0001-0017 PDF | WESTLAW| LEXIS | Detail
Document Source: Google Scholar
ORDER denying 683 Renewed Motion for Attorney Fees 07/19/2011 (N.D. Ga.)
CW-GA-0001-0021 PDF | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Consent Protective Order 04/21/2014 (N.D. Ga.)
CW-GA-0001-0018 PDF | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Period 18 Monitoring Report 08/10/2015
CW-GA-0001-0020 PDF | Detail
Document Source: Bloomberg Law
Joint Stipulation and Order [to modify Consent Decree] 11/02/2015 (N.D. Ga.)
CW-GA-0001-0019 PDF | Detail
Document Source: PACER [Public Access to Court Electronic Records]
Judges Carnes, Julie E. (Eleventh Circuit, N.D. Ga.)
Hill, James Clinkscales (Eleventh Circuit, Fifth Circuit, N.D. Ga.)
Shoob, Marvin Herman (N.D. Ga.)
CW-GA-0001-0018 | CW-GA-0001-0019 | CW-GA-0001-0021 | CW-GA-0001-9000
Wilson, Charles R. (M.D. Fla., Eleventh Circuit) [Magistrate]
Monitors/Masters Dimas, James T. (Maryland)
CW-GA-0001-0003 | CW-GA-0001-0004 | CW-GA-0001-0005 | CW-GA-0001-0006 | CW-GA-0001-0020
Morrison, Sarah A. (District of Columbia)
CW-GA-0001-0003 | CW-GA-0001-0004 | CW-GA-0001-0005 | CW-GA-0001-0006
Plaintiff's Lawyers Antonucci, Stacy F. (New York)
Bartosz, Michael K. (New York)
Borten, Laurence D. (New York)
Boyd, Samika Nicole (Georgia)
Bramlett, Jeffrey O. (Georgia)
CW-GA-0001-0001 | CW-GA-0001-0002 | CW-GA-0001-0007 | CW-GA-0001-0008 | CW-GA-0001-9000
Caplan, Michael A. (Georgia)
CW-GA-0001-9000 | CW-GA-0001-9000
Finch, Aaron Hirsh (New York)
Gray, Douglas C. (New York)
Hamrick, Gordon Lee IV (Georgia)
Hechtman, Sarah (New York)
CW-GA-0001-9000 | CW-GA-0001-9000
Hirokawa, Corey Fleming (Georgia)
Holt, Daniel W.E. (New York)
Hyne, Elissa Lee Glucksman (New York)
Lowry, Marcia Robinson (New York)
CW-GA-0001-0001 | CW-GA-0001-0002 | CW-GA-0001-0007 | CW-GA-0001-0008 | CW-GA-0001-9000
Lustbader, Ira P. (New York)
Nothenberg, Shirim (New York)
Pitchal, Erik S. (New York)
Powell, Jeffrey K. (New York)
Remlin, Christina Wilson (New York)
Ricci, Jane M. (Georgia)
Shalf, Sarah M. (Georgia)
Defendant's Lawyers Alexander, Carmen R. (Georgia)
Baker, Thurbert E. (Georgia)
Brantley, Overtis Hicks (Georgia)
CW-GA-0001-0007 | CW-GA-0001-9000
Brown, Vivica Mitchell (Georgia)
Chandler, Patricia A. (Florida)
Cohen, Mark Howard (Georgia)
Dancy, Rolesia Butler (Georgia)
Davis, Jefferson James (Georgia)
Denmark, Winston A. (Georgia)
Hicks, Charles George (Georgia)
Jones, John Custer (Georgia)
Linkous, William J. III (Georgia)
CW-GA-0001-0008 | CW-GA-0001-9000
Lovett, William Jake Jr. (Georgia)
MacKenzie, Andrew George (Georgia)
Nelson, Shalen S. (Georgia)
Pacious, Kathleen Mary (Georgia)
Ruel, Charissa Ann (Georgia)
Snelling, Eddie Jr. (Georgia)
Taylor, Elizabeth B. (Georgia)
Theriot, Jamie L. (Georgia)
Whitted, Stephen E. (North Carolina)
Other Lawyers Becker, Joshua Luke (Georgia)
Fletcher, Courtney Carter (Georgia)
Howell, Terry Robert (Georgia)
Mast, J. Timothy (Georgia)
Mazziotti, Thomas J. (Georgia)

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