United States District Court, D. Arizona
Arizona Dream Act Coalition; Jesus Castro-Martinez; Christian Jacobo; Alejandro Lopez; Ariel Martinez; Natalia Perez-Gallagos; Carla Chavarria; and Jose Ricardo Hinojos, Plaintiffs,
Janice K. Brewer, Governor of the State of Arizona, in her official capacity; John S. Halikowski, Director of the Arizona Department of Transportation, in his official capacity; and Stacey K. Stanton, Assistant Director of the Motor Vehicle Division of the Arizona Department of Transportation, in her official capacity, Defendants.
G. CAMPBELL, SENIOR UNITED STATES DISTRICT JUDGE
have filed a motion for attorneys' fees and non-taxable
expenses. Doc. 336. The motion is fully briefed, and oral
argument has not been requested. The Court will grant the
motion in part.
requesting an award of attorneys' fees and non-taxable
expenses must show that it is eligible for an award, entitled
to an award, and requesting a reasonable amount. See
LR Civ 54.2(c). Plaintiffs request attorneys' fees under
42 U.S.C.A § 1988, which allows “the court, in its
discretion, ” to award reasonable attorneys' fees
to a prevailing party in federal civil rights cases.
“[A] court's discretion to deny fees under §
1988 is very narrow and . . . fee awards should be the rule
rather than the exception.” Herrington v. County of
Sonoma, 883 F.2d 739, 743 (9th Cir. 1989) (internal
quotation marks omitted).
determine the reasonableness of attorneys' fees, federal
courts generally use the “lodestar” method.
See Blanchard v. Bergeron, 489 U.S. 87, 94 (1989);
United States v. $186, 416.00 in U.S. Currency, 642
F.3d 753, 755 (9th Cir. 2011). The Court must first determine
the initial lodestar figure by taking a reasonable hourly
rate and multiplying it by the number of hours reasonably
expended on the litigation. Blanchard, 489 U.S. at
94 (citing Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)). The Court next “determines whether to modify
the lodestar figure, upward or downward, based on factors not
subsumed in the lodestar figure.” Kelly v.
Wengler, 822 F.3d 1085, 1099 (9th Cir. 2016).
“These factors are known as the Kerr
factors.” Stetson v. Grissom, 821 F.3d 1157,
1166-67 (9th Cir. 2016) (citing Kerr v. Screen Extras
Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)). Such an
adjustment is appropriate “only in rare or exceptional
circumstances.” Cunningham v. City of Los
Angeles, 879 F.2d 481, 488 (9th Cir. 1988).
request $3, 173, 480.10 in attorneys' fees and $89,
174.63 in nontaxable expenses. These amounts include $71,
504.00 in fees and $2, 497.39 in costs for the ACLU-Arizona
(“ACLU-AZ”) (Doc. 340 ¶¶ 15-16); $878,
007.50 in fees and $13, 549.78 in costs for the Mexican
American Legal Defense and Educational Fund
(“MALDEF”) (Doc. 339-8 ¶¶ 15-16); $1,
108, 491.50 in fees and $35, 295.09 in costs for the National
Immigration Law Center (“NILC”) (Doc. 339-4 at
2); and $1, 115, 477.10 in fees and $37, 832.37 in costs for
the ACLU Immigration Rights Project (“ACLU-IRP”)
(Doc. 339-10 ¶ 24). Doc. 339 at 17.
make three arguments for reducing Plaintiffs'
attorneys' fees: (1) Plaintiffs fees on appeal are not
recoverable, (2) Plaintiffs' fee request is unreasonable,
and (3) Plaintiffs' nontaxable expenses are unreasonable.
Plaintiffs' Appeals Fees.
argue that 818 hours of work for appeals to the Ninth Circuit
and the United States Supreme Court should be excluded from
Plaintiffs' fee request because appeals fees must be
filed with the Ninth Circuit clerk. Doc. 337 at 2.
case law on this topic is somewhat unsettled. In Cummings
v. Connell, 402 F.3d 936, 940, 947-48 (9th Cir. 2005),
the Ninth Circuit held that attorneys' fees for appeals
under § 1988 must be filed in the Ninth Circuit pursuant
to Ninth Circuit Rule 39-1.6. The fees may be determined by
the District Court only after the Ninth Circuit transfers a
fee request under Rule 39-1.8. See id. But in
Twentieth Century Fox Film Corp. v. Entertainment
Distributing, 429 F.3d 869, 884 (9th Cir. 2005), the
Ninth Circuit allowed the district court to award
attorneys' fees in a copyright case for all
“services that contributed to the ultimate victory in
the lawsuit, ” including two petitions for certiorari,
despite Rules 39-1.6 and 39.18. Twentieth Century
Fox relied on Cabrales v. Los Angeles, 935 F.2d
1050 (9th Cir. 1991), which remanded a case to the district
court for an award of all appellate fees under a § 1988
attorneys' fee request. 429 F.3d at 884; see also
Cabrales, 935 F.2d at 1053(remanding to district court
for attorneys' fees related to the petition for
certiorari and for Ninth Circuit appeal to determine that
attorneys' fees were owed).
Twentieth Century Fox and Cabrales, the
prevailing party filed its initial request for attorneys'
fees in the United States Supreme Court, and the Supreme
Court referred the parties to the district court for an
award. Id. at 1051-52; Twentieth Century
Fox, 429 F.3d at 875. Further, in Cabrales, the
Ninth Circuit specifically directed the district court to
determine the prevailing party's fees on appeal. 935 F.2d
case is like Cummings, where the parties first
sought appellate fees from the district court. 402 F.3d at
947. The Court will follow Cummings and not consider
the request for fees on appeal. Plaintiffs' fee request
will be reduced by 818 hours, consisting of 9.6 hours for
ACLU-AZ, 291.9 hours for ACLU-IRP, 156.5 hours for MALDEF,
and 360 hours for NILC. See Doc. 338-8 at 9.
Reasonableness of Plaintiffs' Fees.
hourly rates are determined “by the rate prevailing in
the community for similar work performed by attorneys of
comparable skill, experience, and reputation.”
Schwarz v. Sec'y of Health & Human Servs.,
73 F.3d 895, 908 (9th Cir. 1995) (internal quotation marks
omitted); see also Blum v. Stenson, 465 U.S. 886,
895 (1984) (“‘[R]easonable fees' under §
1988 are to be calculated according to the prevailing market
rates in the relevant community”). The relevant
community is generally the forum in which the district court
sits. Prison Legal News v. Schwarzenegger, 608 F.3d
446, 454 (9th Cir. 2010).
make four arguments on the reasonableness of Plaintiffs'
proposed hourly rates: (1) out-of-forum rates are
inappropriate here; (2) raters should not be based solely on
current rates; (3) Plaintiffs' claimed rates are
unreasonable; and (4) the Court should adopt the 2016 Arizona
State Bar survey rates. Doc. 337 at 3-6.
seek to recover out-of-state hourly rates for attorneys from
ACLU-IRP, NILC, and MALDEF. Doc. 336 at 15; see also
Docs. 336-6 ¶ 24, 336-12 ¶ 68, 336-19 ¶ 31.
Defendants argue that Plaintiffs should be limited to Arizona
rates because they have not shown that it was necessary to
hire out-of-state counsel. Doc. 337 at 3-4.
outside the relevant community can be used if “local
counsel was unavailable, either because they are unwilling or
unable to perform or because they lack the degree of
experience, expertise, or specialization required to handle
properly the case.” Camacho v. Bridgeport Fin.,
Inc., 523 F.3d 973, 979 (9th Cir. 2008). The prevailing
party must demonstrate that local counsel was not available.
See Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th
argue that local counsel lacked the experience, expertise, or
specialization to handle the case. Plaintiffs provided a
statement from Daniel Pochoda that from “his own
experience with other complex impact and constitutional
litigation matters, there were not sufficient lawyers or law
firms in Arizona with the necessary expertise, capacity, and
willingness to take on a case of this magnitude and
complexity.” Doc. 336-25 ¶ 6. Mr. Pochoda further
stated that ACLU-AZ could not have handled this case alone,
as there were only two other lawyers on staff besides Mr.
Pochoda. Id. ¶ 5.
Court finds that Plaintiffs have submitted persuasive
evidence that there was insufficient local counsel with the
willingness and requisite “degree of experience,
expertise or specialization required to handle properly the
case.” Camacho, 523 F.3d at 979 (citing
Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.
1997)). Mr. Pochoda served as legal director of the ACLU-AZ
for years and is familiar with the local legal market and the
pool of civil rights attorneys available to handle a case
like this. See Puente Ariz. v. Penzone, No.
CV-14-01356-PHX-DGC, 2017 WL 4805116, at *2 (D. Ariz. Oct.
Court will, however, cap out-of-state attorneys' fees at
$750 per hour. The Court concludes that this cap is
reasonable given the fact that rates above this level
represent premium billing in large legal markets.
argue that 2018 rates are reasonable for all attorneys
because the protracted litigation caused a delay in payment.
Doc. 339 at 7. Defendants argues in response that Plaintiffs
have presented no evidence that their work on this case
precluded them from engaging in other opportunities, and 2018
rates are inappropriate here because the attorneys' rates
have changed dramatically since 2012. Doc. 337 at 5.
Court may consider a rate adjustment for a complex civil
rights action where compensation is received several years
after services are rendered. See Missouri v.
Jenkins, 491 U.S. 274, 283-84 (1989). The Court may use
an interest adjustment or may base the fee award on current
rates rather than historic rates. Gates, 987 F.2d at
1406; see also In re Wash. Pub. Power Supply Sys. Sec.
Litig., 19 F.3d 1291, 1305 (9th Cir. 1994) (“Full
compensation requires charging current rates for all work
done during the litigation, or by using historical rates
enhanced by an interest factor.”). A fee award at
current rates is intended to compensate prevailing attorneys
for lost income they might have received through missed
investment opportunities as well as lost interest.”
Id. (citing Jenkins, 491 U.S. at 283 n.6).
Where the case has lasted a few years, current rather than
historical rates may be an adequate remedy for delayed
payment. See Ohio-Sealy Mattress Mfg. Co. v. Sealy
Inc., 776 F.2d 646, 663 (7th Cir. 1985); New York
State Assoc. for Retarded Children v. Carey, 711 F.2d
1136, 1152 (2d Cir. 2010) (current rate is appropriate for
two to three years of litigation).
this case has been in litigation since 2012, awarding an
adjustment for delay in payment is appropriate. See
Gates, 987 F.2d at 1406 (“[T]he length of the
delay in payment is a consideration in deciding whether an
award of current rather than historic rates is
warranted.”.) Further, Plaintiffs have provided several
affidavits supporting their assertion that their
organizations had to forgo taking other cases because of this
litigation. See Doc. 339 at 8. For example, Linton
Joaquin avowed that as general counsel for NILC, he
participates in case selection and knows that NILC had to
decline other critical civil rights matters
“specifically as a result of [their] existing
commitments in the instant case.” Doc. 339-1 ¶ 23.
Similarly, Julia Gomez of MALDEF and Jennifer Chang Newell of
the ACULU-IRP both stated that their organizations declined
litigation in relation to their work in this litigation.
Docs. 339-8 ¶ 4, 339-10 ¶ 3.
Court will award current rates. Plaintiffs' counsel
forewent other work that might well have paid them sooner,
and, while rates have increased, the increase compensates
Plaintiffs' counsel for income they forewent over the
last six years. This approach comports with the purpose of
§ 1988 to encourage lawyers to accept meritorious civil
rights cases. Ohio-Sealy Mattress, 776 F.2d at 662.
Defendants' Other Arguments.
argue that Plaintiffs' rates are high in comparison to
their claimed rates in other cases. For example, Ms. Tumlin
of NILC claims an hourly rate of $600, but claimed a rate of
$325 as of September 26, 2017. Mr. Danjuma of ACLU-IRP claims
an hourly rate of $445 but claimed an hourly rate of $350 for
work performed in 2017 and 2018. Doc. 337 at 6. Moreover,
Plaintiffs informed Defendants that MALDEF attorney Mr.
Viramontes's hourly rate was $640 in May 2018, but now
claim it is $700. Doc. 337 at 6.
also argue that the Court should use the 2016 State Bar of
Arizona survey to determine rates for the attorneys based on
their years of experience and, in doing so, ...