Appeal Puts Doubled Fee Award in Sight of Lawyers

     SAN FRANCISCO (CN) — The Ninth Circuit blasted a federal judge Tuesday for stiffing a military-law group on half the fees it wanted after winning its government-records suit.
     A subcommittee of the National Lawyers Guild, the Military Law Task Force initiated the underlying case in 2005.
     Fueled by the end of Operation Iraqi Freedom and the declassification of the documents, the task force substantially prevailed in its demand for Department of Defense records on an incident involving an Italian journalist in Iraq and the military’s rules of engagement in Fallujah, Iraq.
     Though the group wanted $381,633 in attorneys’ fees, consistent with its attorneys’ billing rates, the Northern District of California awarded it just $180,520 in fees and $1,059 in costs.
     This award matched the government’s argument about a $200-per-hour prevailing market rate.
     When U.S. District Judge Yvonne Gonzalez Rogers upheld that award later, she faulted the task force for not having submitted its own arguments about prevailing market rates.
     Gonzalez Rogers said the task force doomed its request by demanding only its attorneys’ current billing rate.
     Reversing 2-1 Tuesday, the Ninth Circuit said the task force in fact “provided substantial evidence of the prevailing market rate for the applicable periods.”
     “In justification of the rates that it found reasonable, the court below said that ‘Plaintiffs fail to provide evidence of prevailing market rates in this forum during the time period at issue,'” the majority opinion states. “In view of the evidence in the record discussed above regarding MLTF’s rates, we cannot agree with this conclusion. As our case law makes clear, it is incumbent upon the district court to provide a “concise but clear explanation of its reasons for the fee award.”
     Writing for the majority, U.S. Senior Circuit Judge Barrington Parker scoffed at the government’s argument that the task force forfeited its opportunity to argue for historical rates by only advocating in its brief for current rates.
     “From time to time, fee applicants request awards higher than that which the evidence may, upon close review by a neutral judge, fairly permit,” said Parker, sitting on the panel by designation from the Second Circuit in Manhattan. “But a fee applicant’s decision to request a higher rate does not permit a court to disregard different rates if the evidence in the record supports them.”
     Parker conceded that the task force “might have been more careful to alert the district court of the substantial evidence of prevailing historical rates in the declarations, but there is no question here that the evidence was properly submitted to the district court.”
     “Furthermore, the fact that MLTF cited to the relevant declarations in its moving papers is not consistent with the government’s position that the pertinent evidence was buried in an impenetrable record,” Parker wrote, abbreviating the task force’s name. “Accordingly, we vacate the district court’s fee award and remand for a recalculation of the appropriate rate.”
     The 19-page opinion closes with another victory for the task force. Parker said the group is also entitled to seek attorneys’ fees for the cost of its appeal.
     Colleen Flynn, the Los Angeles-based lead attorney for the task force, said she to see looks forward to completion of the case.
     “It’s long overdue,” Flynn added. “It’s important to know you’re going to get paid if you win.”
     The task force was also represented by Arce Law Group.
     “To us, it was a pretty clear abuse of discretion that resulted in a manifest injustice,” Arce attorney Will Gordon Kaupp, of San Francisco, said about the reversal.
     Chris Ford, an attorney for the task force based in Phoenix, Ariz., added that the precedent “could be helpful for future litigants who seek public [records] under the Freedom of Information Act.”
     In a 4-page dissent, U.S. Circuit Judge Johnnie Rawlinson said she would affirm because the task force made no mention of the underlying fee award in its notice of appeal.
     “Rather, it referenced only the district court’s denial of the motion for reconsideration,” Rawlinson wrote.
     She added: “I am not persuaded that the ‘fair inference’ of an intent to appeal should be so facilely bestowed upon Appellants who have failed to comply with the rules of appellate procedure.”
     Rawlinson also believes that the lower court acted within its discretion.
     “The district court was not required to accept these rates as prevailing market rates for 2006—2008, not only because the rates were for different years, but also for different types of cases,” the dissent states. “Not one of the referenced cases arose under the Freedom of Information Act, as does this case. Rather, the rates cited were awarded in ‘a recent large class-action First Amendment case,’ ‘a consumer class action,’ and civil rights litigation.”
     The Department of Justice declined to comment. Gerard Sinzdak represented the government on appeal.

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