### FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT October 10, 2003 THOMAS K. KAHN CLERK [PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH

CIRCUIT

___________________________ Nos. 02-16708 & 02-169 49

___________________________ D. C. Docket Nos. 01-01268-CV-T-N 01-01269-CV-T-N

STEPHEN R. GLASSROTH, Plaintiff-Appellee,

versus ROY S. MOORE, Chief Justice of the

Alabama Supr

eme Court, Defendant-Appe llant.

----------------------------- --------- MELINDA MADDOX, BEVERLY J. HOWARD, Plaintiffs-Appe llees,

versus ROY S. MOOR

E, in his officia

l capacity as Admi nist rativ e Head of the Alaba ma Judi cial S ystem, Defendant-Appe llant.* Honorable Richard W. Story, United States District Judge for the Northern District of

Georgia, sitting by designation. 2 _______________________ Appeals from

the United States D

istrict Court for t

he Midd le Dis trict of Ala bama

_______________________ (October 10, 2003) Before EDMONDSON, Chief Judge, CARN ES, Circuit Judge, and STORY * , District Judge. CARNES, Circuit Judge: The plaintiffs ar

e prevailing partie s in this 42 U.S.C.§ 1983 case, and for that reason they are entit led to reasonable fees and expenses unde r 42 U.S.C. § 1988(b). Pursuant t

o 11th Cir. R. 39-2,

they have filed

a timely a

pplication for fees and expenses in

connection with thei

r successful defe

nse in this Court of the judgment they obtained in t he district court. See Glassroth v. Moore , 335 F.3d 1282 (11th Cir. 2003).They request a total of $76,109 in fe

es and $1731 in expenses. The amount of the plaintiffs’ request is not opposed by the defendant, Chief Justice Moore. He

has not filed any

thing in this Court in re sponse to their application, even t

hough our Rule 39-2(c)

gave him an absol

ute right to do so within ten days after service of the plaintiffs’ application on him, which occurred3

on August 4, 2003. Ordinarily, we grant in full applications for fees and expenses to which no objection has been filed, the assumption being that in our adversary system of justice opposing parties can be count ed on to look out for their own fiscal well-bein

g and to complain i

f the requested fees and expenses are out of line. But this is no t an ordinary case in that respect. Chief Justice Moore

was sued in his offic

ial capacity,

which means th

at the State of Alabama is responsible for paying any attorney ’s fees and expenses that are imposed against him. He is not, howeve r, being represe

nted by the Off

ice of the Attorney G

eneral but instead by

counsel of his own cho osing, who at the beginning of thi s litigation were des ignated as deputy atto rneys general, see Ala. Code § 36-15-1 (last para .), solely f or the purpose of def

ending him in this litigation . As a result, th is is not the usual case

where the defens e of a lawsuit against an official of the State of Alabama is being handled by its Attorney General or by attorneys chosen by him. Nor is this a case w

here the state off

icial being sued seem

s very mindf

ul of the state’s inter

est in its funds, an in

terest which is dir

ectly impli

cated by the application for fees and expenses that is before us. The Chief Justice’s earlier failure to request in a timely fashion a stay of our judgm ent affirming the district court, followed by

his publicly announced intention to defy that court’s orde

r with4

full knowledge that d

oing so could cost the St

ate of Alabam

a hundreds of mil

lions of dollars, raises do ubts about his d edication to the well -being of the publ ic fisc. If any more evidence is needed on the matter, it is here in the form of the Chief Justice’s inexplicable failure to obj ect to any part of the plaintiffs’ application for fees and expenses, alt hough at least one part (and perhaps more) is o bjectionable. Given these unusual c

ircumstances,

and because we ar

e reluctant to risk h

aving public funds used to pay

more fees and

expenses than the law

requires, we thi

nk that the proper course of action is to remand this application to the district court with directions. On remand, the Attorney General should be given an opportunity to appear regarding this application and to make any objections

he deems approp

riate, and be allowed to participate in any proceedings to determine reasonable amounts that should be paid. The district court may also deem it advisable to give the Attorney General the same opportunity in regard to any application for fees and expenses that is filed in conne

ction with the litiga

tion of this case in the

district court, but that matter is not now befo re us. While we leave to the district court initially the decision about the exact amount to be awa

rded plaintiffs for

their appellate le

vel attorney’ s fees and expenses, some

of the hours for whi

ch they seek com

pensation should be1 The application form accompanying the request for f ees and expenses shows 5.5 hours for “Work re. ami

cus briefs,” but t

he more detailed

time activity

record accomp

anying it li

sts a total of 8.8 hours that are clearly identified as time spent rounding up amici and supervising the production and fil

ing of amicus bri

efs on behalf of p

laintiffs. We leav

e it to the district c

ourt to sort out that discre

pancy in or

der to ensure tha

t no fees are pai

d for time spent in c

onnection with amicus briefs supporting plaintiffs’ position.

5 disallowed. The district court ought not allow the plaintiff

s any compe

nsation for time their counsel spen t in connection wit h amicus briefs support ing their positi on. The plaintiffs’ fee application includes a request for reimbursement for work that lead counsel for the

plaintiffs, Ay

esha N. Khan, d

id in relation to a num

ber of amicus briefs

filed in support of pla

intiffs’ position. 1 Her time re cords indicate that she spent that tim

e enlisting various or

ganizations to appear

as amici; suggesting potential sig

natories for the br

iefs; working on, su

pervising, and reviewing the amicus brief s; and seeing that t hey were mailed on time. It comes as no su

rprise to us that atto

rneys for part

ies solicit amic

us briefs in support of their position, nor are we shocked that counsel for a party would have a hand in writing an amicus brief. In fact, we suspect that amicus briefs are often used as a means of evading the page limitations o n a party’s briefs. See Voices for Choices v. Illinois Bell Tel. Co ., 339 F.3d 542 (7th Cir. 2003) (Posner

, J., in chambers) (“[A]m

icus briefs, often solicited by parties, may be used to m ake an end run around court-imposed limitations on the length of parties’ briefs.”). Even2 These numbers do not include the hours counsel have included in their application for

work done on amicus briefs in support of plaintiffs’ position, which we have already noted should not be allowed. The total number of hours for which they have requested pa yment for their appellate work thus far is precisely 326.2. Plaintiffs’ application tells us that three attorneys who worked on their brief and assisted 6 where such effor

ts are successful,

however, they

should not be underwri

tten by the other party. A

n organization or gro

up that files an am

icus brief on the wi

nning side is not entitled to a

ttorney’s fe

es and expenses as a p

revailing party

, because it is not a party. We will not allow that result to be cha

nged by the sim

ple expedient of having counsel for a party do som e or all of the am

icus work. To pay

a party for such work would

encourage the prac

tice, which we a

re loathe to do. Th

e district court should not award plaintiffs any attorney’s fees or expenses for work done in con necti on wit h sup porti ng amic us bri efs. ( A reas onab le amou nt of t ime spent reading and responding to opposing amicus briefs is, of course, compensable.) While we have the case before us, we also add some observa tions about two factors the district court ought to consider in determining whether the total number of appellate level

hours for which plai

ntiffs seek attorne

y’s fees is r

easonable or unreasonably high . They seek pa yment from

the State for appr

oximately 2 15 hours on the brief, n

early 90 hours r

elated to oral argu

ment, and about

15 hours in connection with the f

ee application. 2Ms. Kahn in preparing for oral argument “opted, as an exercise of billing judg ment, not to seek reimbursement for their time in this application.” We appreciate that fact, but on remand the district court shou

ld determine whet

her the attorney

s who did opt to seek r

eimbursement for

their time should have exercised more billing judgment. 7 One of those factor

s is that Ms. Khan,

who served as lead counsel for plaintiffs in the appe

al, is an expert in t

his area, and we

mean “thi s area” with particularity . She is an expert not only as to the Establishment Cla use in general, but also as to Ten Commandments displays in particular. T he declaration she has filed in support of the

fee application te

lls us that Ms. Kahn has specialized in c ivil rights and civil liber

ties litigation for m

ore than a decade,

serving as counsel in complex litigation in state and federal court. For the past five years she has focused her work e

xclusively on chur

ch-state litigation,

serving as counsel in Establishment C

lause cases around t

he country, inc

luding seven cases involving government-spon

sored Ten Com

mandments d

isplays. Wi

th that kind of experience com

es knowledge, eff

iciency, and s elf-confidence, which should reduce the numb er of hours necessa ry for the task.

A legal team

headed by Ms. Kahn should have take

n fewer hours to ha

ndle this case on appeal than one without the benefit of her expertise. Beyond the expertise of lead counsel, there is another factor the district court should consider in determining whether the number of hours for which8

compensation is r

equested may

be too high. The tim

e that should be devoted

to a case varies direc

tly with the diff

iculty of the ca

se. It takes m

ore time and ef

fort to stalk beasts in the backwoods than it does to shoot fish in a barrel. Whatever may have been the situati

on when this lawsuit w

as filed, by the

time it reach

ed the appellate stage – after Chief Justice Moore had testified and the district court had made detailed factfindings – not m uch stalking by pla

intiffs’ counsel w

as required. Given the well-e stablished Lemon test, which is binding on us, and the settled facts, this case w

as not a hard one, a

nd it was not difficu

lt for plaintiffs to defend their judgment at this lev el. Apparently anticipating that we might have some concerns that the claim ed hours exceeded the difficulty of the task, Ms. Kahn tells us in her declaration that this case was “well out of the ordinary” for government-sponsored Ten Commandm

ents displays. T

hat is so, she explain

s, because som

e of the contentions that Chief Justice Moore and his attorneys raised were ones she had never encountered before. We do not doubt that. Nonet heless, it should not ha

ve taken much time to find controlling precedent foreclosing those unusual contentions, such as C

hief Justice Moore’ s argument that the Establishm

ent Clause applies onl y to legislation, see Glassroth , 335 F.3d at 1293-94, his argument that the Ten Commandments are no t religious in nat ure, id . at 1294-95,9

and his argument

that he can do as he pl

eases regardless of federal court decisions to the contrary, id . at 1302-03. We should not be m

isunderstood. We

are not imply

ing that plaintiffs’ counsel did not spend at t he appellate stage o f this case all the h ours they repre sent that they did. H

owever, the issue

is the number of

hours that reasonabl

y should have been spent. It is not unusual for attorneys to spend more time on a case than it reasonably r

equires. We se

e that regularly

, and it is one reaso

n why applicati

ons for att orney’s fees to b e paid b y the oth er party a re revie wed by cou rts. Fin ally, we do not mean t

o imply that Ms. Kahn and her co-counsel did not do an exc ellent job in representing their clients in this Court. They did, and we found their brief and oral argument helpfu l. To reiterate,

a specific determ

ination of how mu

ch in attorney’ s fees and expenses the State o f Alabama m ust pay plaintiff

s should be made in

the first instance by the di strict court in a proceeding involving counse l who is dedicated to the proposition that the

state taxpayer

s should not pay m

ore than the law re

quires, which is a reasonab

le amount of fees and expenses. T he district court shou

ld give the Attorn ey General an o pportuni ty to appear a s counsel for that pu rpose. We direct the district court not to allow the payment of any fees and expenses for work that plaintiffs’ counsel did in connecti on with supporting am

icus briefs, and to3 Nor does anything we have said prevent the Attorney General from agreeing to the plaintiffs’ fee request, minus the amount sought for work done on supporting amicus briefs. The Attorney General might do so either because he thinks that the resulting request is reasonable, or because he come

s to the informed c

onclusion that opposing the reques t would cost more tha

n it would save. This option should alleviate concerns that the remand will needlessly increase the number of compensable hours and the final amount of the award. Whether or not the Attorney General ultimately decides to oppose some part of the remaining re quest, we want to be confident that the people of

Alabama have ha

d someone who is def

initely dedic

ated to advocatin

g their fiscal interests cast a skeptical eye on the plaintiffs’ fee applica tion and decide what to do about it. 10 consider the two fa

ctors we have m

entioned. Of cour

se, nothing we have

said prevents the plaintiffs and the Attorney General from settling this fee matter through negotiations. 3 If they do not settle, the district court can decide the matter when it determines the fees and costs due to the plaintiffs for the trial of this case. REMANDED WITH DIRECTIONS.11

STORY, District Judge: I agree with the m

ajority’s decision not to allow a ny attorney ’s fees or expenses for work don e in connection with supporting amicus bri efs. However, I would simply deduct those fees and expenses from the fee application and award the balance. I w

ould not remand th

e matter for

further review by the district court. The fee applicat

ion was unopposed. In

the ordinary co

urse, the applicat

ion would have been approved by this Court, and fees would have been awarded as requested. See 11th Cir. R. 39-2 (permitting party opposing fees to file an objection and requi

ring such objections

to be filed within te

n days after se

rvice of the fee applicatio

n); see also ACLU v. Barnes , 168 F.3d 423, 428 (1 1th Cir. 1999) (“Those opposing

fee applications ha

ve obligations, too.”

). The maj ority finds that this case is not a

n ordinary case

and is deserving of spe

cial treatme

nt. First, the majority

points out that the Att

orney Genera

l of Alabama is not representing the Chief Justice,

and thus, he has not ha

d the opportunity to protect the intere sts of the citizens of A

labama. I di sagree. Though the Attorney Gen

eral did not select the Chief Justice’s attorneys, he approved them and appointed them as Deputy Attorneys General. Ala. Code § 36-15-1. Moreover, the Attorney General’s ac

tions make clea

r that even though he w

as not directly i

nvolved in the case through the appeal to this Court, he has been aware of the procedural history12

of the case. W

hen the State of Al

abama faced

sanctions of “hun

dred of millions of dollars” for defy

ing the district court ’s order to rem ove the monum

ent, the Attorney Gen

eral was involved in

the process that re sulted in the rem oval of the monument. The fact that the Chief Justice intended to allow the state to suffer those financial sanc

tions should have given the Attorney Gen

eral ample w

arning that h e need ed to w atch o ut for the in teres ts of A labama ’s tax payers . To as sume that this same litigan t would zea lously figh t a few thous and dolla rs of attor ney’s fees was not reasonable. If the Attorney General wished to be heard on this issue, he should have interve

ned in a timely

manner. Hi s failure to interve ne suggests to me that he does n

ot wish to do so. Second, the m

ajority sugges

ts that the Chief Just

ice is not “very

mindful of the state’s inter

est in its funds.” A

lthough the Chief Justice’s actions in re sponse to the threatened f

inancial sanctions a

gainst the state for

contempt support

such a concl usio n, I fe ar the majori ty is mak ing an assump tion that ma y ulti mately h arm, rather t han hel p, the t axpayers of Alaba ma. The Chi ef Just ice and his att orneys know better than we the time and expense invol ved in this litig ation. An explanation for the lack of a response from the Chief Justice that is at least as plausi ble as t hat offered by t he majori ty is tha t the Ch ief Jus tice an d his at torneys1 The majority points out that at least one part of the request was objectionable, i.e. , fees

and expenses for work done in connection with supporting amicus briefs. But in fairness to the Chief Justice and his attorneys, this Circuit had not previously held that such fees and expenses were unrecove

rable. Thus, the f

ailure to raise th

is issue is not suspec

t. 13 made an informed decision that Plaintiffs’ request was not unreasonable. 1 They know the fees and expenses incurred by the Chief Justice and are able to compare those to Plaintiffs’ request. In light of that knowledge, the

y may h ave chosen not to challen ge the requ est. The scen ario that c ould resu lt from the majori ty’s decision is that afte

r the case is hear

d on remand, the

attorney’s f

ee request is substantially unc

hanged except for th

e reduction for wor

k on supporting amic

us briefs. Plaintiffs’ attorneys would then be entitled to fees for defending their fee petit ion. T hus, b ecaus e of ou r grat uito us ass istan ce, th e taxp ayers o f Alab ama would have spent m

ore of their tax doll

ars than if we had s

imply deduct

ed the work on the amicus briefs an d approved the peti tion. Lest this decision be

misunderstood, I do not oppose protecti ng the interests of the innocent taxpa

yers of Alaba

ma. Howeve

r, in this case, I

am not sure the majority decision will ultimately benefit the taxpayers. Furthermore, we are second-guessing the de

cisions of the two high

est legal officer

s of the State of Alabama, th

e Chief Justice of t

he Supreme Co

urt and the Attorney

General. Both of these officials

were elected by

the people of Alaba

ma. In m y view, the pe

ople14

of Alabama ha

ve spoken (or, in this

case, chosen not to s

peak) through these elected officials. As with any other case when a

n unopposed fee application is submitted, I would deduct the fees that are inappropriate on their face and award the balance.