Ninth Circuit Remands Transgender Idaho Prisoner’s $2.63 Million Attorney Fee Award for Recalculation— Against Bankrupt Corizon Health Successor
Transgender Idaho state prisoner Adree Edmo filed suit in 2017 seeking gender-confirming surgery. She suffered from an extreme case of gender dysphoria—a recognized medical condition—and had repeatedly attempted self-castration. As PLN reported, the litigation was successful, and Edmo received the surgery shortly before her release in July 2020. The federal court for the District of Idaho later awarded $2.63 million in attorney fees and costs. [See: PLN, Mar. 2023, p.56.]
Edmo alleged violations of the Affordable Care Act and the Americans with Disabilities Act, as well as Eighth and Fourteenth Amendment civil rights violations and a state-law negligence claim. Following an evidentiary hearing, the district court granted a preliminary injunction that required Defendants—state prison officials and their private medical contractor, Corizon Health—to provide her adequate healthcare, including gender-affirming surgery.
Defendants appealed and the case was remanded by the United States Court of Appeals for the Ninth Circuit. On remand, the district court again ordered the surgery for Edmo, and the decision was then affirmed by the appellate court, which also refused to hold a rehearing of the case before the entire Ninth Circuit en banc. The Supreme Court of the U.S. declined to issue a writ of certiorari to review the case, too.
By then, Edmo’s legal team had collectively spent 5,968.3 hours litigating the case, and Corizon Health was on the hook for the attorney fees and costs, which the district court calculated at $2.63 million. The state appealed, and on April 5, 2024, the Ninth Circuit reversed in part and affirmed in part.
As in most attorney fee calculations, the district court used a “lodestar method”: After determining the appropriate number of billable hours, that amount is multiplied by an hourly rate based on the prevailing local market cost of legal expertise. A court may then increase the fee award by a “multiplier” based on a dozen possible factors—including the novelty and difficulty of the issues involved, the results obtained, the skill needed to litigate the claims, and awards in similar cases, as explained in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975).
However, under the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e, “only fees incurred litigating successful claims” can be recovered; attorney fees are also capped at 150% of the rate for appointed counsel under the Criminal Justice Act—which was $232.50 per hour at the time that the district court calculated the fee award in Edmo’ s case.
The Ninth Circuit held that the lodestar calculation was the correct procedure to use, but it said that the district court incorrectly included attorney time “spent on both successful and unsuccessful claims”—in violation of PLRA, which excludes compensation for litigating unsuccessful claims even if they were “premised on the same facts that supported” Edmo’s prevailing Eighth Amendment claim. Nor could fees be awarded on claims brought against defendants who were dismissed on appeal. Therefore, the fee award was vacated and remanded to the lower court for recalculation of the lodestar.
The district court had also applied a multiplier to the lodestar amount based on the Kerr factors, ranging from 1.7 to 2.0. That enhancement was appropriate, the Ninth Circuit held, given that “counsel achieved excellent results in what may properly be viewed as a landmark case.” The Court noted that Edmo “was the first person to obtain a court order compelling a prison to provide gender-confirmation surgery.” But since the multiplier is “normally selected after the lodestar amount is correctly determined,” the district court was directed to reconsider that enhancement after the lodestar has been recalculated.
Edmo was represented on appeal by California attorneys Lori Rifkin, Dan Stormer and Amy Whelan, and by Idaho attorneys Craig Durham and Deborah Ferguson. See: Edmo v. Corizon, Inc., 97 F.4th 1165 (9th Cir. 2024).
As PLN previously reported, Corizon Health, now known as YesCare, has split into two companies and put most of its liabilities in a new entity called Tehum Care Services, which then declared bankruptcy—an ethically dubious process that is nonetheless legal in Texas, so it is known colloquially as the “Texas Two-Step.”
All proceedings against Corizon Health/Tehum have been stayed pending the bankruptcy court’s final discharge, including recalculation of attorney’s fees and costs in this case. [See: PLN, Nov. 2024, p.29.] After that, sadly, it is unlikely that there will be sufficient assets left in the bankrupt firm to allow Edmo’s counsel to see much, if any, of whatever amount the district court may award on remand.
As a digital subscriber to Prison Legal News, you can access full text and downloads for this and other premium content.
Already a subscriber? Login