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Hiken v. Department of Defense

United States Court of Appeals, Ninth Circuit

September 6, 2016

Marguerite Hiken; The Military Law Task Force, Plaintiffs-Appellants,
Department of Defense; United States Central Command, Defendants-Appellees.

          Argued and Submitted November 20, 2015 San Francisco, California

         Appeal 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 Plaintiffs-Appellants.

          Gerard Sinzdak (argued), H. Thomas Byron III, and Dara S. Smith, Civil Division, Department of Justice, Washington, D.C.; for Defendants-Appellees.

          Before: William A. Fletcher, Johnnie B. Rawlinson, and Barrington D. Parker, Jr. [*]


         Attorneys' Fees

         The 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' fees.

         The 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.

         The 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.

         The 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.

         Finally, 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.

         Judge 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.

         In 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 attorneys.

         MLTF 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.

         The 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.


         A. MLTF Successfully Sues the Government Under FOIA

         Military 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.

         At the 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.

         Following 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.[1] 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 additional documents.

         B. MLTF Seeks Attorney Fees

         In June 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.

         MLTF 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, 633.99.

         The 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.

         C. The District Court Grants MLTF a Portion of the Requested Fees

         On 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.

         D. MLTF Moves to ...

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