Marguerite Hiken; The Military Law Task Force, Plaintiffs-Appellants,
Department of Defense; United States Central Command, Defendants-Appellees.
and Submitted November 20, 2015 San Francisco, California
from the United States District Court No. 4:06-cv-02812-YGR
for the Northern District of California Yvonne Gonzalez
Rogers, District Judge, Presiding
Colleen Flynn (argued), Los Angeles, California; W. Gordon
Kaupp, Arce Law Group PC, New York, New York; Chris Ford, Law
Office of Chris Ford, Phoenix, Arizona; for
Sinzdak (argued), H. Thomas Byron III, and Dara S. Smith,
Civil Division, Department of Justice, Washington, D.C.; for
Before: William A. Fletcher, Johnnie B. Rawlinson, and
Barrington D. Parker, Jr. [*]
panel vacated the district court's initial attorneys'
fee award to plaintiffs under 5 U.S.C. § 552(a)(4)(E)
after plaintiffs substantially prevailed in a Freedom of
Information Act action brought against the federal
government, and remanded for recalculation of attorneys'
district court on initial review awarded plaintiffs
attorneys' fees calculated at $200/hour, which was well
below the current billing rates for its attorneys. The
district court, upon a motion to reconsider, determined that
the first judge had not erred in awarding only $200 an hour.
panel held that notwithstanding plaintiffs' failure to
designate for appeal the district court's underlying fee
order, plaintiffs' intent to appeal the underlying fee
award was apparent from both the factual circumstances and
plaintiffs' extensive briefing on the issue. The panel
exercised its discretion, and considered the merits of the
underlying fee award.
panel held that consistent with its burden, plaintiffs
provided substantial evidence of the prevailing market rate
for the applicable periods, and this evidence was properly
submitted to the district court. The panel further held that
in determining that prevailing market rate, the district
court relied on authority that was not apposite, and failed
to provide a requisite clear explanation for the fee award.
the panel held that plaintiffs fell within the class of
litigants entitled to attorneys' fees on appeal, and may
request attorneys' fees on appeal in accordance with
Ninth Circuit Rule 39-1.6.
Rawlinson dissented because she would hold that plaintiffs
did not timely appeal the underlying fee award, and that the
district court acted within its discretion in calculating the
fee award. She would affirm the district court.
PARKER, Senior Circuit Judge.
February 2012, Plaintiffs-Appellants Marguerite Hiken and the
Military Law Task Force (together, "MLTF")
substantially prevailed in a Freedom of Information Act
("FOIA") action brought against
Defendants-Appellees the Department of Defense and United
States Central Command (together, the
"Government"). In June 2012, MLTF filed a motion
for attorney fees pursuant to 5 U.S.C. § 552(a)(4)(E),
requesting that the court award it fees consistent with the
current billing rates for its attorneys. MLTF submitted
evidence relating to the prevailing historical market rate
for the pertinent geographic locations and time period, but
did not argue for any fees except the current billing rates
for its attorneys. Among other things, the Government argued
that MLTF was only entitled to fees based on the prevailing
market rate, which the Government argued was $200 an hour.
The district court (Ware, C.J.) granted the motion
in part, awarding MLTF attorney fees calculated at $200 an
hour, which was well below the current billing rates for its
moved to alter or amend the judgment. The Magistrate Judge to
whom the motion was assigned determined that the district
court had erred in failing to consider MLTF's evidence of
the prevailing market rate, and recommended an award higher
than that ordered by the district court.
district court (Rogers, J.), upon the
Government's motion to consider the issue de
novo, determined that the first judge had not erred in
awarding only $200 an hour. The district court pointed out
that MLTF had not argued for any rate except its
attorneys' current billing rate, and thus took the risk
that the court would reject the higher billing rate and
accept the Government's proposed billing rate. The
district court held that MLTF was not entitled to raise a new
argument on its motion to amend the judgment. MLTF appealed.
For the reasons set forth, we VACATE the district court's
initial fee award and REMAND the case for further proceedings
consistent with this opinion.
MLTF Successfully Sues the Government Under FOIA
Law Task Force is a subcommittee of the National Lawyers
Guild that addresses military law issues. Marguerite Hiken is
the co-chairperson of MLTF. In March 2005, MLTF made a
request pursuant to FOIA, seeking information from the
Government relating to an incident in Iraq involving an
Italian journalist, and other information relating to the
Rules of Engagement in effect during the U.S. military's
involvement in Fallujah, Iraq. The Department of Defense
("DOD") referred MLTF to United States Central
Command (CENTCOM), which in turn acknowledged receipt of
MLTF's request and subsequently denied the request in
August 2005. MLTF appealed the denial to DOD. After DOD
informed MLTF that it would not be able to complete the
appeal process within the time limit set by FOIA, MLTF
commenced this action seeking disclosure of the documents.
outset of the litigation, DOD contended that it had
diligently searched its records and uncovered responsive but
confidential documents. At MLTF's urging, DOD conducted
further review and ultimately located an additional number of
responsive documents. Redacted versions of those documents
were produced to MLTF. In October 2007, the parties
cross-moved for summary judgment, and the district court
(Patel, J.) denied both motions, ordering certain
documents to be submitted to her for in camera review.
submission of the additional documents requested by the
court, the parties renewed their cross-motions for summary
judgment, and in February 2012, the district court granted
each motion in part and ordered the Government to turn over
certain additional documents. After the case was transferred to
then-Chief Judge Ware, the Government moved for clarification
and partial reconsideration. The district court granted the
motion in part and allowed the Government to withhold certain
MLTF Seeks Attorney Fees
2012, MLTF moved for attorney fees and costs pursuant to 5
U.S.C. § 552(a)(4)(E). MLTF argued, first, that it had
substantially prevailed in the litigation, making it eligible
for fees and costs under § 552(a)(4)(E). MLTF also
argued that it was entitled to attorney fees because the
public interest was benefitted by the disclosure of the
documents, MLTF's interest in the documents was aligned
with that public interest, and there was no reasonable basis
for the Government's withholding of the documents.
proposed the amount of fees pursuant to the
"lodestar" method, and argued that the district
court should defer to MLTF's attorneys' current
billing rates and their judgment about the number of
reasonable hours expended. MLTF directed the district court
to the declarations of its attorneys describing fees awarded
to them in similar circumstances, but only requested that the
district court award them fees based on its attorneys'
current billing rates. MLTF requested a fee award of $381,
Government opposed the motion, arguing that although MLTF was
eligible for fees, it was not entitled to them because the
Government had articulated a reasonable basis for withholding
the documents and because MLTF had submitted an unreasonably
high fee request. The Government further argued that, even if
MLTF was entitled to fees, its award should be substantially
lower than requested. The Government argued that the hours
billed should be reduced because of MLTF's limited
success on some issues and because the hours billed
represented duplicative work. Finally, the Government
contended that MLTF's attorneys were not entitled to
their current billing rate, and that MLTF had failed to
submit evidence of the reasonableness of their fees. The
Government suggested a rate of $200 an hour instead.
The District Court Grants MLTF a Portion of the Requested
August 21, 2012, Judge Ware granted MLTF's motion in
part, awarding $180, 520 in fees and $1, 059.99 in costs. He
held that MLTF was both eligible for, and entitled to, fees
and costs, but rejected MLTF's request for fees based on
current billing rates. He observed that "the bulk of the
litigation in this case took place between 2006 and 2008,
" and thus, he "[did] not look to the
attorneys' current rates, but instead look[ed] to
prevailing market rates between 2006 and 2008."
Hiken v. Dep't of Def., No. C 06-02812 JW, 2012
WL 3686747, at *5 (N.D. Cal. Aug. 21, 2012). He noted that
"Plaintiffs fail[ed] to provide evidence of prevailing
market rates in this forum during the time period at
issue." Id. He then cited two cases from the
Northern District of California, Blackwell v. Foley,
724 F.Supp.2d 1068 (N.D. Cal. 2010), and Pande v.
ChevronTexaco Corp., No. C 04-05107 JCS, 2008 WL 906507
(N.D. Cal. Apr. 1, 2008), and determined that, consistent
with those decisions, a reasonable rate for all of MLTF's
attorneys was $200 an hour. Judge Ware declined, however, to
reduce the number of billable hours, and granted a fee award
of $180, 520.
MLTF Moves to ...