Kathy Carson v. Billings Police Department David Ward Larry Reinlasoder Seth Weston Mike Scheino
470 F.3d 889
9th Cir.
2006
Check Treatment
Docket

*1 would have prospective students Kathy CARSON, Plaintiff-Appellant, for those return instruction received no case Id. have payments.” applied has to a where section DEPARTMENT; POLICE BILLINGS forego charg- charity. the schools to Were Ward; Larry Reinlasoder; David Seth tuition, relationship to their stu- their ing Scheino, Weston; Mike Defendants- “con- not be deemed probably dents would Appellees. in section term used tractual” as that No. 04-35438. Runyon. 1981 and Appeals, Court of United States is, course, charge Being tuition able Ninth Circuit. private For most inconsequential. not proposition. schools is a make-or-break 10, 2006.* Jan. Submitted may so for Kamehameha But it not be Filed Dec. Schools, up primarily set which were The tuition eleemosynary institutions. only fraction

they charge reflects a small and, then, costs even operating

of their tuition, or a reduced no pay

most students maj. at 831-32. The op.

tuition all. See may en- endowment

schools’ substantial without operating

able them to continue very long time—

charging any tuition a indefinitely.

perhaps we have writ- pages the scores

Given issue, of this it should be

ten on both sides close and ours question

clear that the

may not the last word. Given be aroused, maj. op. has see this case

passions 6,n. that what’s noting it’s worth

at 835 may operation

really at stake be the along their tra-

the Kamehameha Schools model, merely a (preferential)

ditional year million the schools now

few dollars own students.

get their * 34(a)(2). R.App. unanimously panel case P. finds this suitable argument. See without oral Fed. for decision *2 (briefed),

Timothy Kelly C. Kelly Law Office, MT, Emigrant, for appellant. (briefed), Moulton, L. Vicki McDonald Bellingham, Mather, P.C., Longo & Bill- MT, ings, appellees. for the GRABER, Before: KLEINFELD and RAFEEDIE,** Judges, Circuit Judge. District KLEINFELD, Judge. Circuit This appeal is an from an attorney’s fees award.

I. Facts arises out of a sex discrimi- nation by Kathy claim against Carson Billings, department Montana Police several prevailed, individuals. She in state and federal tribunals. day After six hearing, a state administrative law favor, relief, found her and ordered which appeal. increased After the agency’s final rendered, decision was Car- son filed this 42 action, U.S.C. parties except settled for attor- neys’ fees. The district court initially de- nied ground fees on the Carson was not a “prevailing party” in the case, federal but we reversed and remand- for ed appropriate determination of an ** Rafeedie, California, The Honorable Edward Senior sitting by designation. District of Judge United District States the Central this cases back on The case now comes award.1 claiming rate was “reasonable attorney’s appeal, Carson’s inadequate. rates Montana.” fee award was *3 counsel submitted no evi Analysis II. Plaintiffs “prevailing the rate” dence of what market $122,857.12 in attor- sought Appellant an in Montana was. He submitted affida costs, and was awarded fees and neys’ was, his stating vit what rate and demon $85,992.94. argu- makes two Appellant experienced and strating that he was an ments, abused its that district court the law. knowledgeable attorney in this area of calculating explaining in discretion from other also submitted affidavits He calcula- in the lodestar hourly rate used lawyers in experienced saying substance as tion, in hours striking some good lawyer that he an exceptionally was spent the case. reasonably But charged. he who deserved rate of that affiants A. Lodestar none the affidavits said in lawyers or other Montana themselves court calculated the The district charged much. per of the award at disputed portion $150 attorney that the claimed Carson’s hour. affi- The submitted number of defense been calculated should have lodestar comparably experi- in A opposition. davits money all the hour. Almost per $205 lawyer plaintiffs employment rights enced between these two is the difference “I his am per said rate was $140 attor rate was rates. $205 any attorney Montana who not aware of hourly of the time ney’s rate as perform such charges per hour to $195.00 submitted, though it had application was impressive re- with an work.” Another jurisdiction We have lower before. been “my experience general said sume and § and review to 1291 pursuant 28 U.S.C. in han- performed rate for work of “determination district court’s dling rights civil claims $130.00 pursu fees attorneys’ of awarded amount lawyer, 31 A with hour.” defense side abuse of to 1988 for an discretion.”2 ant an AV Martin- years experience of mu- rating, charged he dale-Hubbell said an award of party When a seeks rights for nicipalities per hour civil fees, the bur attorneys’ party $125 bears experienced civil Another claims work. of the hours submitting of evidence den both addition, represented rights litigator, who paid.3 In and the rate worked sides, an less charged hour or said he prove party $150 has the burden “ defendants, “asking” he was ‘pre though in line charged rate with mediations,” and based “complex for commu vailing rate of relevant market ”4 of knowledge on his extensive court in its order nity.’ The district Montana, varied prevailing rates fees in in the that courts noted hour. rights in civil between plaintiffs’ counsel awarding Gynecolo Soc’y & Obstetricians Billings Dept., Fed.Appx. 4.Guam v. Police 36 1. Carson of Cir.1996) Ada, (9th Cir.2002). (9th gists 696 614 v. F., County 976 (quoting City & S. Davis County, 815 F.2d 2. Jordan Multnomah (9th Cir.1992), vacated in 1547 F.2d Cir. grounds, part on other 1993)). 234, 242, of Educ., 3. Webb Board (1985). 85 L.Ed.2d 233 105 S.Ct. nothing record, County.8 There is v. Multnomah Fees under found, in what the district court to cast USC 1988 must be based on the market “prevailing community” on the reasonableness Carson’s doubt attorney’s lawyers “reasonably skill, Ms. with comparable Carson was entitled experience reputation.”9 who lawyer to hire a more than did, lawyers lawyer was Though judge’s explanation the district charge higher entitled he did. terse, on this record was noth- there rate,”5 “prevailing But the not the ing to explain. more One side submitted contract, provides the individual standard prevailing community rate, evidence *4 for lodestar calculations. standard is didn’t, the other side judge went “prevailing rate of the relevant with the uncontradicted evidence he had. community.”6 fee-shifting For purposes It in striking that his own and other area, English-rule in this of gener use lawyers’ support several affidavits in of al market rate rather than the contract claim, plaintiffs attorney’s single not a in- fairness, predictability rate affords some says any lawyer dividual that uniformity. That a a lawyer charges charges high hourly rate, an even after rate, it, particular hourly gets is evi establishing defense affidavits a lower is, bearing dence on what the market rate community rate submitted. The lawyer because the part his clients are judge high went at range end of the of the market. But such thing there is a that the uncontradicted evidence showed high charger charger, as a and low and the to community be the judge Once the supposed district pre to use the hour to be “reasonable $150' vailing attorneys market rate for of com prevailing in rates Montana.” parable experience, skill reputation, there not say, given much else to may may be the rate uncontradicted establishing record by the individual in attorney question.7 this was so. establishing Evidence the prevailing community rate is lower attorney argues Plaintiffs that the than attorney’s charged is a suffi- explanation cutting provided his rate cient reason to cut the in rate used by insufficient, the district court is and our lodestar calculation. dissenting colleague agrees. It is incum upon bent explain why district court to respectfully disagree We our with dis- rate, plaintiffs lawyer’s charged reduces senting colleague’s view that Jordan v. explanation and the must be sufficient to County10 Multnomah and Sorenson v. review, for meaningful require allow under Mink11 Jordan a different result. Jor- Cross, 800, Dang (9th (9th Cir.2005); 5. v. 422 F.3d 812-13 City Ange Chalmers v. Los of Cir.2005); Soc'y les, (9th Guam Gy 1986). Obstetricians & F.2d 796 1205 Cir. Ada, 691, necologists (9th v. 100 F.3d 696 Cir.1996) (quoting City County Davis v. & 8. County, Jordan Multnomah F.2d 815 1258 Cir.1992), S.F., 1536, (9th (9th 1987). a Cir. vac part grounds, ted in on other 984 F.2d 345 (9th 1993)); City Cir. Chalmers v. Ange Los Stenson, (citing 9. Id. at 1262-63 Blum v. les, 1986). 796 F.2d 1205 Cir. 886, 895-97, 104 S.Ct. 79 L.Ed.2d (1984)). 6. Id. 10. Id. See, Stenson, e.g., Blum 465 U.S. 895-97, Mink, 104 S.Ct. 79 L.Ed.2d Sorenson v. 239 F.3d 1140 (1984); Cross, Dang 812-13 sufficient, were dan, ney applied evi- case attorneys “submitted sufficiently explained. claimed rates that the ... show dence prevailing in the those in line with were AFFIRMED. choice of judge’s community,”12 so in explained, to be lower rate needed GRABER, Judge, concurring Circuit Likewise, in bar, they did not. at case dissenting part: part Sorenson, court set fees the district part part. I concur in and dissent in the face of affidavits per hour in agree I that the district did not court establishing plaintiffs’ that the disallowing its abuse discretion 21.5 hour ranging from extent, To that I concur.1 hours. those “in line with were by law- community for law similar services majority’s from But dissent conclu- skill, expe- reasonably comparable yers of sufficiently that the district court ex- sion vacated be- reputation.”13 rience and We of the plained its determination court “must use” the cause the rate, and its conclusion there *5 find that rate” and “did not “market $132 any applicable no evidence case, In this the market rate.”14 was the only rate. Title 42 1988 refers U.S.C. find, on did indeed based district court “reasonable” fees. Reasonableness means evidence, that rate it substantial $150 rate in prevailing market the relevant used was the market Stenson, Blum community. 895, 1541, S.Ct. L.Ed.2d 891

B. Horn’s (1984). However, Deducted Supreme Court has rate varies recognized that 21.5 of The district court disallowed skill, experience, on greatly depending unreasonable, hours as counsel’s claimed rate requested is reputation; where the $3,225 amounting to by rates services line with the for similar why. spent The time was on explained skilled, repu- comparably experienced, administrative deci motion to enforce the it attorneys, normally “is deemed table time to seek the defendants’ sion before Id. at 104 S.Ct. 1541 be reasonable.” plaintiff elapsed, and judicial review had n. 11. The wrong venue. district filed sentences, court, in two “uncritically” The district may accept court conclusory as to how it prevailing made this comment by number of hours claimed rate of litigat arrived at actually spent if on party, even dis- ion,15 must, fees hour: March 2003 “courts” in order to award them, Plaintiffs counsel actually time trict awarded find “that the based on case or The amount in some other unnamed reasonably necessary.”16 spent was cases, given this rate is disallowing this “reasonable reasons district court’s But in Montana.” attor- of the time portion small permissi- Jordan, district court 1. I concur because the 12. 815 F.2d at 1263. bly the fact that the hours in relied on Sorenson, 239 F.3d at 1149. 13. premature, spent thus unneces- were on a filing sary, was not in the But the document. Id. at 1149-50. venue, wrong was the district court's Inc., Sealy, Easy Living, 743 F.2d Inc. second reason. 16. Id. Nev., had submitted six County Plaintiffs counsel affida- own) Cir.1995). (including support his

vits requested per hour—which was coun- reasons, respectfully For these dissent billing rights actual rate —for civil sel’s view, in part. my fee question Montana at the relevant time. litigation in should be remanded to the district court a former HUD official example, For who for findings, precedent further as our dic- that, Kelly Mr. stated worked with “based tates. of rates my awareness by attorneys services rendered with com- skill, experience

parable ability within by Rocky covered

the states HUD region, the current rate charged

Mountain Kelly

by and appropriate Mr. reasonable be considered low in many

and would ar- eas his level of expertise.” Vitaliy Other KAGANOVICH, Semenovich explain Kelly’s affidavits that Mr. Petitioner, reasonable because he is more knowledge- lawyers. able and efficient than other GONZALES, R. Attorney Alberto any did not court address of this General, Respondent. evidence; neither did the court explain why in general “Montana” is the relevant No. 04-70625. rather community, community than the *6 Appeals, United States Court of lawyers, civil rights or Mountain States Ninth Circuit.

lawyers, particularly efficient and lawyers. knowledgeable Argued Nov. Submitted County, Jordan Multnomah Filed Dec. Cir.1987), we held abused his discre- tion he “made finding because no on the

sufficiency of the evidence” and “re- ... silent as to

main[ed] how he reached

the ‘reasonableness’ conclusion.” More re- Mink,

cently, in Sorenson v. Cir.2001), we reversed and

remanded a decision because “[w]e

cannot determine the district court’s

order it accepted whether Plaintiffs’ evi- concerning or,

dence the market rate if

not, Here, why although not.” we can see

that the district court not accept did Plain- rate,

tiffs concerning evidence the market

we “why not” in cannot determine a mean-

ingful way because the court’s failure to

address Plaintiffs evidence. The court did

not “provide a clear indication of how

exercised its discretion.” McGrath v.