Memorandum Opinion: Award of Attorneys' Fees

    @ U.S. DISTRICT COURT 
NORTHERN DISTRICT OF TEXAS 

IN THE UNITED STATES DISTRICT COURT ” 
FOR THE NORTHERN DISTRICT OF TExas | FEB 2 1098 

  

  

      

        

DALLAS DIVISION 
NANCY DOHERTY, CLERK 

LOIS THOMPSON on behalf of § BY 

and as next friend to TAYLOR § Deputy 
KEONDRA DIXON, ZACHERY § 

X. WILLIAMS, CALVIN A. THOMPSON § 

and PRENTISS LAVELL MULLINS § 

§ 
V. § 3:92-CV-1539-R 

§ 
BURTON F. RAIFORD, in his capacity § 

as Commissioner of the Texas Department § ENTERED ON DOCKET 

of Human Services and THE UNITED § TOR hg oun 
“N.C. P: RY STATES OF AMERICA § 58 AND 79 LES 

MEMORANDUM OPINION: 

AWARD OF ATTORNEYS’ FEES 

This opinion constitutes this Court’s findings of fact and conclusions of law supporting the 

award of $42,374.00 in attorney’s fees and litigation expenses in favor of the plaintiffs and against 

defendant Burton E. Raiford in his capacity as Commissioner of the Texas Department of Human 

Services (“TDHS”). 

A. Prevailing Party Status 

1. Plaintiffs seek fees and expenses against defendant Burton F. Raiford (“Raiford”) under 

42 U.S.C. §1988, which provides for the award of attorney’s fees to prevailing plaintiffs in cases 

brought pursuant to 42 U.S.C. §1983. This case was brought pursuant to the “and laws” provision 

of 42 U.S.C. §1983 to enforce plaintiffs’ rights under the Medicaid Act. 

MEMORANDUM OPINION: AWARD OF ATTORNEYS’ FEES - Page 1 

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2. Although plaintiffs have not obtained a court order or a written settlement specifically 

granting the relief they sought against defendant Raiford, the defendant did - as the result of this 

lawsuit - change the State’s policies and practices to provide much of the relief sought by plaintiffs. 

Indeed, the following chronology of events makes it clear that the plaintiffs’ lawsuit was the cause 

of these changes. Unless defendant Raiford showed that his agency’s conduct was a “wholly 

gratuitous response,” plaintiffs are entitled to fees and expenses.’ 

3. A primary issue in the case was the State’s continued use of the EP test in screening 

children for lead poisoning. Although there had been discussions earlier in 1992 with TDHS 

representatives about this issue, defendant Raiford’s agency continued to use the ineffective EP test. 

4. Ina July 9, 1992 letter from TDHS to Susan Finklestein, a Texas Rural Legal Aid lawyer - 

with whom plaintiffs’ attorneys were working on the EP test issues - the defendant made it clear that 

the State was continuing to use the EP test to screen for lead poisoning. 

5. In fact, before this July 9, 1992 letter, the State used blood lead tests only for those 

EPSDT patients with elevated EP test results. Indeed, the State had given 42,731 EP tests for lead 

screening and only 7,696 blood lead levels. 

6. The July 9, 1992 TDHS letter to Finklestein stated that the enclosed Laboratory Screening 

Services booklet described the TDHS arrangement with the Texas Department of Health for blood 

lead testing. That booklet states on page 6: 

  

' Associated Builders & Contractors v. Orleans Parish School, 919 F.2d 374, 378 (5 Cir. 

1990); Pembroke v. Wood County, Tex., 981 F.2d 225, 229 (5™ Cir. 1993). 

MEMORANDUM OPINION: AWARD OF ATTORNEYS’ FEES - Page 2 

 



The primary screening test for lead is the erythrocyte protopophyrin 

(E.P.). Itis not affected by surface contaminants as is the blood lead. 

. . . A blood lead level is run on each specimen with an E.P. of 35 

ug/dl or more. 

7. Moreover, in this July 9, 1992 letter, TDHS stated that it had no plans to review its lead 

poisoning screening program. 

8. Twenty (20) days later, on July 29, 1992, the plaintiffs filed this lawsuit seeking the 

following preliminary and permanent unciive relief on behalf of a West Dallas class: 

a) a declaration that West Dallas was a high risk area for 

children for lead poisoning and notification of all EPSDT 

providers that eligible West Dallas children must be given 

blood lead level assessments; 

a notice to all West Dallas children of the availability of 

blood lead screening and treatment; 

the re-testing of children given the EP test in the past; and 

a case management system to ensure that all children eligible 

for the screening actually received it. 

9. The plaintiffs’ Second Amended Complaint, which was filed on September 8, 1992, 

sought similar relief on behalf of a state-wide class against Raiford and TDHS. In response, the 

State’s answer admitted that it was using the EP test and claimed that the EP test would be 

discontinued in November, 1992. 

10. The plaintiffs’ attorneys continued to negotiate with the State after they received a copy 

of the July 9, 1992 letter from TDHS to Susan Finklestein, the Texas Rural Legal Aid attorney. 

MEMORANDUM OPINION: AWARD OF ATTORNEYS’ FEES - Page 3  



  

11. At the December 14, 1992 class certification hearing in this case, the State’s attorney 

presented the Court and the parties with a new Lead Screening Changes/Information Memorandum 

(dated December 11, 1992) in which the State (i) formally adopted the use of the blood lead test for 

all children, and (ii) required the rescreening of children previously given the EP test. 

12. This December 11 memorandum notified the providers that they were responsible for 

follow-up care and for the initiation of environmental investigations for children with elevated blood 

lead levels. It also explained that the State would target EPSDT children living in high risk areas, 

such as West Dallas, for additional outreach efforts. These changes were sent to all EPSDT Medical 

Screening Providers on December 15, 1992, the day following the class certification hearing in this 

case. 

13. In February of 1993, all of the parties - including the State defendant - filed a Joint 

Motion for Continuance which stated: 

The parties believe that the major substantive issues in the case to be 

heard on March 1, 1993, including the use of the erythrocyte 

protoporphyrin (“EP”) test as a blood level assessment and the 

capacity of the states to conduct blood lead testing for Medicaid- 

eligible children, have been resolved by an agreement in principle 

among the parties. 

14. Despite these facts, defendant Raiford argues that the plaintiffs were not a “prevailing 

party” because they were not a catalyst in changing the State’s actions. The defendant has the 

burden of showing that it’s actions regarding the EP test were a “gratuitous” response; and, the State 

has not met this burden. 

  

2EPSDT Memorandum 12/11/92. 

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15. Defendant Raiford relies on the State’s acquisition of equipment for using the blood lead 

test, but there is no documentation showing when the State decided to replace the EP test with the 

blood lead level test as a screening device for childhood lead poisoning - except for the December 

11, 1992 memo presented to the Court and the parties at the December 14, 1992 class hearing. 

16. Moreover, the acquisition of the blood lead level testing equipment is consistent with 

the existing TDHS policy prior to this lawsuit - that is, the primary screening device for childhood 

lead poisoning was the EP test, but the blood lead level test was conducted for those children who 

had elevated EP levels. Therefore, plans to acquire the equipment for the inhouse analysis of the 

post-elevated EP blood lead tests does not show that TDHS had already made a decision to replace 

the EP test with the blood lead test statewide. 

17. With respect to Raiford’s other argument, the filing of an outreach plan for the West 

Dallas area prior to the filing of this lawsuit certainly does not show that the TDHS had decided to 

change its tests for the entire state wide class. 

18. As the plaintiffs correctly argue, this lawsuit could have been easily avoided if the State 

had really changed its policy. All that the State’s attorney would have needed to do was to present 

the documentation that the policy had been or was going to be changed to eliminate the use of the 

EP test for lead poisoning screening on a state-wide basis. The State could not do this because it 

had made no such change. 

  

*The Court discounts the defendant’s chronology because the State never took the 
position that it was going to require providers to screen with the blood lead test instead of 
continuing to allow use of the EP test until after this lawsuit was filed. 

MEMORANDUM OPINION: AWARD OF ATTORNEYS’ FEES - Page 5 

 



  

B. The Relevant Johnson Factors® 
  

19. Plaintiffs seek an award of fees based on an hourly rate of $150 for Laura Beshara and 

$300 for Michael Daniel. These hourly rates are appropriate, and they are approved by this Court. 

20. Michael M. Daniel graduated from S.M.U. Law School in May 1974. He is a member 

of the State Bar of Texas and is admitted to practice in the Northern and Eastern Districts, the Fifth, 

Eighth and Eleventh Circuits of the U.S. Court of Appeals and the U.S. Supreme Court. Daniel was 

employed as a staff attorney at Dallas Legal Services Foundation from 1974 through September 

1979. During this time he represented clients in a variety of state and federal court impact litigation 

and law reform activities. From September 1979 until December 1988, Daniel was employed by 

East Texas Legal Services on a contract basis to engage in federal civil rights litigation and other 

activities on behalf of its clients. Since January 1981, Daniel has been in private practice in a small 

civil rights law firm, and he has engaged in a specialized civil rights litigation practice which has 

focused primarily on voting rights, municipal services, and housing discrimination. 

21. Laura B. Beshara graduated from S.M.U. Law School in 1991. Ms. Beshara was an 

editor for Southwestern Law Journal. She worked first as a law clerk during law school and, since 

graduation and licensing, as an attorney for Michael M. Daniel, P.C. During this period she had 

gained considerable litigation experience in federal court. 

22. The range of non-contingent hourly rates for attorneys of experience and qualifications 

equivalent to those of Mr. Daniel doing complex federal court litigation in this Court is from 

$200.00 to $350.00 per hour. The range of rates for attorneys of experience and qualifications 

  

“Johnson v. Georgia Highway Express, Co., 488 F.2d 714 (5* Cir. 1974). 

MEMORANDUM OPINION: AWARD OF ATTORNEYS’ FEES - Page 6 

 



  

equivalent to Ms. Beshara is from $90.00 to $150.00 per hour. 

23. These hourly rates are proper and are supported by other fee awards in the Dallas 

Division of the Northern District of Texas. See, e.g., Walker v. HUD, 99 F. 2d 761, 774 (5" Cir. 

1996) (approving hourly rates of $275 for Daniel and $125 for Beshara). 

24. Plaintiffs seek compensation for 156.5 hours of Ms. Beshara’s time and 55.3 hours of 

Mr. Daniel’s time. The activities for these hours are set out in the table attached to the fee motion. 

Plaintiffs do not seek compensation for any time after the Texas EPSDT blood level testing policy 

was changed and published on December 15, 1992. 

25. The Court finds that the number of hours spent by plaintiffs’ attorneys is reasonable.’ 

They exercised billing judgment, and are not seeking compensation for duplicative time except for 

instances when the combined efforts of plaintiffs’ counsel was required because of the legal and 

factual complexity of this case. 

26. Mr. Daniel and Ms. Beshara have no ongoing “fees billed and fees paid” professional 

relationship with the plaintiffs. Their fee arrangement with their clients is strictly contingent, and 

the clients will pay no attorneys’ fees regardless of the outcome of the case. 

27. Plaintiffs’ counsel agreed to advance the costs and litigation expenses necessary to the 

prosecution of the case. Mr. Daniel has advanced $305.75 in litigation expenses for the prosecution 

of this case during the period covered by this fee request. 

  

"These hours are documented in the time and expense records exhibit attached to this 
opinion. 

“The expenses are all for copying expenses - i.e., 1223 copies at $0.25 per page = 
$305.75. 

MEMORANDUM OPINION: AWARD OF ATTORNEYS’ FEES - Page 7 

 



  

C. Fee Award 

28. The Court awards the following fees and expenses to the Plaintiffs’ attorneys: 

Rate Hours Base Fee 

Michael Daniel $300 55.2 $16,590 

Laura Beshara $150 156.5 $23,475 

$40,065 

Multiplier 1.05 x 40,065 = $42,068.25 

Expenses $ 305.75 

TOTAL AWARD: $42,374.00 

ENTERED: FEBRUARY 25, 1998 

  
MEMORANDUM OPINION: AWARD OF ATTORNEYS’ FEES - Page 8 

 



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