Sixth Circuit Tightens § 1988 Fee-Shifting: Categorical Exclusion of Failed Class-Certification Time and Imposition of Blended Rates Where Billing Records Are Unreliable

I. Introduction

In Marion Sinclair v. Andrew Meisner, consolidated with related claims brought by Marion Sinclair, Tawanda Hall, Curtis Lee, Coretha Lee, and Kristina Govan (collectively, “Plaintiffs”), the Sixth Circuit reviewed a substantial attorney-fee award entered after a “global” settlement of $500,000 in Takings Clause litigation against Oakland County, Michigan arising out of tax-foreclosure proceedings.

Although Plaintiffs ultimately obtained a merits victory on the Takings theory on appeal—most notably in Hall v. Meisner, 51 F.4th 185 (6th Cir. 2022)—the fee dispute concerned whether Plaintiffs’ counsel (Scott Smith and McAlpine PC) could shift to the County a fee request exceeding $4.2 million allegedly based on ~4,800 hours for litigation concerning four homes, including extensive time spent on a failed class-certification effort and substantial claimed appellate time despite pro bono appellate representation by the Pacific Legal Foundation.

The district court reduced the request and awarded $1,361,476.51 in fees. The County appealed. The key issues on appeal were (1) how rigorously courts must police unreasonable categories of billed time under 42 U.S.C. § 1988(b), (2) what to do with pervasive “block billing,” vagueness, and overstaffing, and (3) how to determine a reasonable hourly rate when the accounting is unreliable.

II. Summary of the Opinion

The Sixth Circuit (Kethledge, J.) vacated the fee award and remanded with instructions to enter a substantially reduced award. The court held that the fee petition was exceptionally unreasonable and that the district court abused its discretion by not making additional, targeted reductions and by not addressing the County’s rate argument.

The court directed the district court to:

  1. Exclude specific non-compensable categories of time (including all time spent on failed class certification, time spent litigating against non-County defendants, and time spent on an unfiled “motion to reopen”).
  2. Cap compensable appellate time at 75 hours total (out of 1,643 claimed), based on the Sixth Circuit’s own knowledge of the appeals.
  3. Reduce Mark McAlpine’s 999 claimed hours to 10 compensable hours.
  4. Apply the district court’s 40% across-the-board reduction to the remaining hours (after the categorical exclusions).
  5. Apply the district court’s 1.1 multiplier to the post-reduction hours.
  6. Use a blended hourly rate of $325 for all compensable time.
  7. Deny fees for the fee appeal because Plaintiffs “lost on nearly every question presented.”

III. Analysis

A. Precedents Cited

1. The lodestar, billing judgment, and the petitioner’s burden

  • Hensley v. Eckerhart, 461 U.S. 424 (1983) anchors the opinion. The court relied on Hensley for (a) the lodestar method (“hours reasonably expended × reasonable rate”), (b) the requirement of “billing judgment,” and (c) the principle that “hours that are not properly billed to one’s client also are not properly billed to one’s adversary.” The Sixth Circuit treated Plaintiffs’ counsel’s failure to exercise billing judgment as pervasive and outcome-determinative.
  • Binta B. ex rel. S.A. v. Gordon, 710 F.3d 608 (6th Cir. 2013) supplied the framework for distinguishing between (i) categorical exclusions for identifiable non-compensable “categories of work” and (ii) percentage/estimated reductions where improper time is hard to segregate.
  • Fox v. Vice, 563 U.S. 826 (2011) supported the court’s insistence on “rough justice” rather than “auditing perfection,” especially where billing records are vague, padded, or block billed.

2. Excluding time spent litigating against other parties

  • Indep. Fed'n of Flight Attendants v. Zipes, 491 U.S. 754 (1989) and Binta B. ex rel. S.A. v. Gordon supported the categorical rule that a defendant is not responsible for fees incurred by the plaintiff in litigation against other parties (there, intervenors; here, other defendants such as the City of Southfield and individuals).

3. Class certification and individualized valuation

  • Tarrify Properties, LLC v. Cuyahoga County, 37 F.4th 1101 (6th Cir. 2022) was central to the court’s conclusion that class certification was “barely colorable,” because damages in these surplus/takings tax-foreclosure cases require an “individualized, fact-intensive, and adversarial process” to determine fair market value property-by-property—making common issues unlikely to predominate.

4. Appellate-court knowledge and reduction of claimed hours

  • Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558 (6th Cir. 2019) was used for the “firm conviction” standard and for the permissibility of percentage reductions when time entries are vague, redundant, or block billed.

5. The need to address rate arguments and explain reasoning

  • Garner v. Cuyahoga Cnty. Juv. Ct., 554 F.3d 624 (6th Cir. 2009) and In re E. Palestine Train Derailment, 160 F.4th 751 (6th Cir. 2025) established that a district court abuses its discretion when it fails to adequately explain its reasoning or to consider competing arguments—here, the County’s push for a blended rate based on Taylor v. County of Oakland, 2025 WL 40858 (E.D. Mich. Jan. 6, 2025).

6. Merits backdrop (why Plaintiffs ultimately prevailed on liability)

  • Hall v. Meisner, 51 F.4th 185 (6th Cir. 2022) provided the underlying Takings Clause win that drove settlement leverage, but also highlighted that the key appellate work was largely done by the Pacific Legal Foundation pro bono.
  • Tyler v. Hennepin County, 598 U.S. 631 (2023) confirmed the same constitutional principle at the Supreme Court level and, in the concurrence, served as a pivot point after which continued aggressive litigation was arguably unnecessary.

7. Concurrence’s authorities on excluding unnecessary fees and good-faith petitions

  • The Ne. Ohio Coal. for the Homeless v. Husted, 831 F.3d 686 (6th Cir. 2016) (court may exclude unnecessarily incurred fees).
  • Clemens v. N.Y. Cent. Mut. Fire Ins. Co., 903 F.3d 396 (3d Cir. 2018) (fee petition is not an “opening bid”; must exclude excessive time), quoting Fair Hous. Council of Greater Wash. v. Landow, 999 F.2d 92 (4th Cir. 1993) and Hensley v. Eckerhart.
  • Island Creek Coal Co. v. Wilkerson, 910 F.3d 254 (6th Cir. 2018) and Golden v. Comm'r, 548 F.3d 487 (6th Cir. 2008) (forfeiture principles), used to explain why the concurrence’s further-cut theories were not adopted as holdings.

B. Legal Reasoning

1. Categorical exclusions as a matter of billing propriety and client identity

The opinion’s most doctrinally pointed move is its categorical exclusion of all 573 hours devoted to failed class certification. The court reasoned from Hensley v. Eckerhart that fee-shifting mirrors what could ethically and practically be billed to the client. Because the only actual clients were the named plaintiffs, and class-certification work is aimed at representing and recovering for unnamed class members, counsel “seek class certification at their own risk” under § 1988: if certification is denied, counsel cannot retroactively treat that work as billable to individual clients and shift it to the defendant.

The court reinforced the categorical cut with a case-specific merits assessment: after Tarrify Properties, LLC v. Cuyahoga County, certification was “nearly certain” to be denied because valuation and damages are individualized. Thus, the court treated the class-certification push as not merely unsuccessful, but as not “reasonably expended.”

2. Shifting fees for work against other defendants

Relying on Binta B. ex rel. S.A. v. Gordon and Indep. Fed'n of Flight Attendants v. Zipes, the court required exclusion of 189 hours spent pursuing relief from non-County defendants. The principle is straightforward: § 1988’s incentives and equity do not support making one defendant pay for a plaintiff’s litigation against another alleged wrongdoer.

3. “Rough justice” reductions informed by appellate-court firsthand knowledge

A striking feature of the opinion is its willingness to impose a concrete appellate-hours cap: from 1,643 claimed down to 75 compensable hours. The court emphasized that (i) the Pacific Legal Foundation did the substantive appellate work in Hall v. Meisner pro bono, (ii) the Sinclair brief on the core issue largely copied the Foundation’s work, and (iii) the Sixth Circuit is uniquely positioned to judge what was required on appeal. Invoking Fox v. Vice, the court declined to prolong fee litigation, opting for decisive trimming to achieve “rough justice.”

4. Overstaffing, vague “monitoring” time, and the near-elimination of lead-counsel billing

The court’s treatment of Mark McAlpine’s time—reducing 999 claimed hours to 10 compensable—is an application of core lodestar logic: billing must reflect concrete, necessary legal work. The court viewed “review/continued review/considering/attention to” entries, unaccompanied by identifiable litigation contributions (appearances, communications, filings, or negotiations), as time no paying client would accept, particularly amid substantial billing by many other attorneys.

5. Percentage reductions and multipliers

After ordering categorical exclusions and specific caps, the court accepted the district court’s remaining tools: a 40% across-the-board reduction for block billing, vagueness, redundancy, and excess, and a 1.1 multiplier. The message is that percentage cuts remain valid for residual uncertainty, but they are not a substitute for obvious categorical exclusions.

6. Blended hourly rates when the accounting is unreliable—and the duty to address rate disputes

The district court’s error on rates was procedural and substantive: it treated the County’s rate challenge as insufficiently specific, despite the County’s reliance on Taylor v. County of Oakland (same lawyers, same defendant, same claim) and its request for an average rate. Citing Garner v. Cuyahoga Cnty. Juv. Ct. and In re E. Palestine Train Derailment, the Sixth Circuit held that failing to engage that argument was an abuse of discretion.

Rather than remand for further rate litigation, the Sixth Circuit itself selected a $325 blended rate (slightly above the $300 rate discussed in Taylor), explicitly to end the fee dispute and to reflect deference to the district court while still enforcing reasonableness.

C. Impact

1. A sharpened constraint on fee recovery for failed class-certification efforts under § 1988

The opinion establishes a practical rule with substantial bite in civil-rights fee-shifting cases: when a class-certification attempt fails, courts may treat the time as categorically non-compensable where the only established clients were the named plaintiffs, because that work is not properly billable to those clients. This reframes class-certification time as a contingent investment by counsel, not an automatically shiftable cost.

2. Stronger incentives for disciplined appellate billing—especially where other counsel carried the appeal

By reducing claimed appellate time to a small, court-determined number, the Sixth Circuit signals that (1) appellate courts will use their own knowledge of the appeal to evaluate reasonableness, and (2) attempting to monetize peripheral participation in an appeal—particularly where pro bono counsel produced the substantive work—risks severe sanctions in the form of drastic reductions.

3. Validation of blended rates as a remedy for unreliable timekeeping

The decision, building on Taylor, reinforces that blended rates can be an administrable solution where block billing and vague entries make lawyer-by-lawyer precision impracticable. The key is that the district court must engage the parties’ competing rate arguments and explain why the chosen rate reflects the relevant market and the record.

4. “Fee litigation about fee litigation” is disfavored

The court’s refusal to award fees for this appeal (because Plaintiffs lost on nearly every question) and its insistence on “rough justice” strengthen incentives to submit realistic petitions at the outset and to narrow disputes rather than prolong them.

IV. Complex Concepts Simplified

  • Takings Clause: A constitutional rule requiring the government to pay “just compensation” when it takes private property for public use. Here, the underlying claim involved the County retaining home equity beyond the tax debt.
  • 42 U.S.C. § 1988(b): A statute allowing prevailing civil-rights plaintiffs to recover “reasonable attorney’s fees” from the defendant.
  • Lodestar: The standard fee calculation: reasonable hours × reasonable hourly rate.
  • Billing judgment: The duty to remove excessive, redundant, or unnecessary time from a fee request—mirroring what a private client would pay.
  • Block billing / vague entries: Time entries that lump tasks together or describe work generically (“review,” “attention to”) making it hard to verify necessity. Courts may respond with percentage cuts.
  • Multiplier: A factor applied after calculating hours and rates to adjust for results or other considerations; here, the district court used 1.1 rather than 2.0.
  • Blended hourly rate: One average rate applied to all compensable hours, used to avoid unreliable allocation among multiple timekeepers.
  • Forfeiture: An argument not properly raised may be treated as abandoned; the concurrence explains why additional grounds for reductions were not adopted as holdings.

V. Conclusion

The Sixth Circuit’s published decision is a forceful application of § 1988’s reasonableness limits. It underscores that fee petitions must reflect genuine “billing judgment,” and it authorizes district courts (and, where appropriate, appellate courts) to impose categorical exclusions, sharp hour caps, and blended rates when the record shows pervasive overbilling, vagueness, and overstaffing. Most notably, the opinion treats unsuccessful class-certification efforts as a high-risk undertaking for counsel—often not shiftable to the defendant when certification is denied. The result is a precedent aimed at protecting fee-shifting’s purposes—encouraging meritorious civil-rights enforcement—without rewarding inflated or unreliable billing practices.