Marguerite Hiken v. Department of Defense
2016 U.S. App. LEXIS 16359
| 9th Cir. | 2016Background
- MLTF (Military Law Task Force) filed a FOIA suit seeking documents about rules of engagement and an incident in Fallujah; after litigation the district court ordered additional disclosures and MLTF substantially prevailed.
- MLTF moved for attorney fees under 5 U.S.C. § 552(a)(4)(E), requesting fees based on its attorneys’ current billing rates and submitted declarations and comparable fee awards as evidence of prevailing rates; sought about $881,634.
- The Government challenged the amount and proposed a $200/hour prevailing rate; it also argued MLTF failed to support historical rates and hours were excessive or duplicative.
- Judge Ware awarded fees but set the hourly rate at $200 (historical rate), yielding about $180,520 in fees; MLTF moved to amend under Rule 59(e).
- A magistrate judge recommended higher fees (~$257,777) after finding MLTF had submitted adequate historical-rate evidence; Judge Rogers denied the motion to amend, reasoning MLTF had only argued current rates and thus forfeited a historical-rate argument.
- MLTF appealed; the Ninth Circuit exercised discretion to review the underlying fee order despite a defective notice of appeal, vacated the fee award, and remanded for recalculation using the record evidence of prevailing historical rates; it also allowed MLTF to seek appellate fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether MLTF was eligible and entitled to FOIA fees | MLTF: substantially prevailed; public interest and lack of reasonable basis for withholding justify fees | Gov: some withholdings were reasonable; success was partial so fees should be reduced | Court: MLTF was eligible and entitled; lower court already found entitlement (not disturbed) |
| Proper method and burden for calculating reasonable hourly rate | MLTF: lodestar based on hours × attorneys’ current rates, supported by declarations and comparable awards (including historical rates) | Gov: applicant failed to prove prevailing historical market rates; proposed $200/hr | Court: lodestar governs; burden on applicant to provide market-rate evidence but court cannot ignore record evidence merely because applicant asked for current rates; remand to recalculate rate based on record evidence |
| Whether MLTF forfeited historical-rate argument by only requesting current rates | Gov: MLTF forfeited the right to rely on historical rates; court need not craft arguments for MLTF | MLTF: historical-rate evidence was in the record and may inform a reasonable rate even if primary request used current rates | Court: rejected forfeiture theory; district court should consider submitted historical-rate evidence and explain rate selection; vacated and remanded |
| Whether appellate fees are recoverable now | MLTF: fees for prevailing on appeal are allowable as part of statutory fee award | Gov: premature because district court might reproduce same award on remand | Court: MLTF may request appellate fees per Ninth Circuit rules; entitlement to seek them recognized |
Key Cases Cited
- Blum v. Stenson, 465 U.S. 886 (U.S. 1984) (burden on fee applicant to show requested rates align with prevailing community rates)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (district court must provide concise but clear explanation for fee award)
- Camacho v. Bridgeport Financial, 523 F.3d 973 (9th Cir. 2008) (applicant must produce evidence that requested rates match prevailing community rates)
- Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992) (opponent bears rebuttal burden to challenge hours or facts in fee affidavits)
- United Steelworkers of America v. Phelps Dodge Corp., 896 F.2d 403 (9th Cir. 1990) (attorney affidavits and prior rate awards are satisfactory evidence of prevailing market rate)
- Lolli v. County of Orange, 351 F.3d 410 (9th Cir. 2003) (intent to appeal underlying order may be fairly inferred from appeal of reconsideration denial)