Carson v. Billings ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KATHY CARSON, 
Plaintiff-Appellant,
No. 04-35438
v.
BILLINGS POLICE DEPARTMENT;  D.C. No.
CV-99-00130-JDS
DAVID WARD; LARRY REINLASODER;
OPINION
SETH WESTON; MIKE SCHEINO,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Montana
Jack D. Shanstrom, District Judge, Presiding
Submitted January 10, 2006*
Portland, Oregon
Filed December 7, 2006
Before: Andrew J. Kleinfeld and Susan P. Graber,
Circuit Judges, and Edward Rafeedie,** District Judge.
Opinion by Judge Kleinfeld;
Partial Concurrence and Partial Dissent by Judge Graber
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Edward Rafeedie, Senior United States District Judge
for the Central District of California, sitting by designation.
19219
19222 CARSON v. BILLINGS POLICE DEPARTMENT
COUNSEL
Timothy C. Kelly (briefed), Kelly Law Office, Emigrant,
Montana, for the appellant.
Vicki L. McDonald (briefed), Moulton, Bellingham, Longo &
Mather, P.C., Billings, Montana, for the appellees.
OPINION
KLEINFELD, Circuit Judge:
This is an appeal from an attorney’s fees award.
I. Facts
The dispute arises out of a sex discrimination claim by
Kathy Carson against the Billings, Montana Police depart-
ment and several individuals. She prevailed, in state and fed-
eral tribunals. After a six day hearing, a state administrative
law judge found in her favor, and ordered relief, which was
increased on appeal. After the agency’s final decision was
rendered, Carson filed this 42 U.S.C. § 1983 action, which the
parties settled except for attorneys’ fees. The district court ini-
CARSON v. BILLINGS POLICE DEPARTMENT 19223
tially denied attorneys’ fees on the ground that Carson was
not a “prevailing party” in the federal case, but we reversed
and remanded for determination of an appropriate fee award.1
The case now comes back on Carson’s attorney’s appeal,
claiming that the fee award was inadequate.
II. Analysis
Appellant sought $122,857.12 in attorneys’ fees and costs,
and was awarded $85,992.94. Appellant makes two argu-
ments, that the district court abused its discretion in calculat-
ing and explaining the hourly rate it used in the lodestar
calculation, and in striking some hours as not reasonably
spent on the case.
A. Lodestar
The district court calculated the disputed portion of the
award at $150 per hour. Carson’s attorney claimed that the
lodestar should have been calculated at $205 per hour. Almost
all the money in dispute is the difference between these two
rates. The $205 rate was plaintiff’s attorney’s hourly rate as
of the time the fee application was submitted, though it had
been lower before. We have jurisdiction pursuant to 28 U.S.C.
§ 1291 and review the district court’s “determination of the
amount of attorneys’ fees awarded pursuant to § 1988 for an
abuse of discretion.”2
[1] When a party seeks an award of attorneys’ fees, that
party bears the burden of submitting evidence of the hours
worked and the rate paid.3 In addition, that party has the bur-
den to prove that the rate charged is in line with the “ ‘prevail-
ing market rate of the relevant community.’ ”4 The district
1
Carson v. Billings Police Dept., 36 Fed.Appx. 614 (9th Cir. 2002).
2
Jordan v. Multnomah County, 815 F.2d 1258, 1261 (9th Cir. 1987).
3
Webb v. Board of Educ., 471 U.S. 234, 242 (1985).
4
Guam Soc’y of Obstetricians & Gynecologists v. ADA, 100 F.3d 691,
696 (9th Cir. 1996) (quoting Davis v. City & County of S. F., 976 F.2d
1536, 1547 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d
345 (9th Cir. 1993)).
19224 CARSON v. BILLINGS POLICE DEPARTMENT
court in its order noted that courts in the district had been
awarding plaintiffs’ counsel in civil rights cases $150 per
hour, and found that this rate was “reasonable given the pre-
vailing rates in Montana.”
[2] Plaintiff’s counsel submitted no evidence of what the
“prevailing market rate” in Montana was. He submitted an
affidavit stating what his rate was, and demonstrating that he
was an experienced and knowledgeable attorney in this area
of law. He also submitted affidavits from other experienced
lawyers saying in substance that he was an exceptionally good
lawyer who deserved the rate he charged. But none of the affi-
davits said that the affiants themselves or other lawyers in
Montana charged as much.
[3] The defense submitted a number of affidavits in opposi-
tion. A comparably experienced plaintiff’s employment rights
lawyer said his rate was $140 per hour, and “I am not aware
of any attorney in Montana who charges $195.00 per hour to
perform such work.” Another with an impressive resume and
experience said “my general hourly rate for work performed
in handling civil rights claims is $130.00 per hour.” A defense
side lawyer, with 31 years of experience and an AV
Martindale-Hubbell rating, said he charged municipalities
$125 per hour for civil rights claims work. Another experi-
enced civil rights litigator, who represented both sides, said he
charged $150 an hour or less to defendants, though he was
“asking” $175 for “complex mediations,” and based on his
extensive knowledge of attorneys’ fees in Montana, prevailing
rates varied between $115 and $160 per hour.
[4] There is nothing in the record, or in what the district
court found, to cast doubt on the reasonableness of Carson’s
attorney’s rate. Ms. Carson was entitled to hire a lawyer who
charged more than other lawyers did, and the lawyer was enti-
tled to charge the higher rate he did. But the “prevailing mar-
ket rate,”5 not the individual contract, provides the standard
5
Dang v. Cross, 422 F.3d 800, 812-13 (9th Cir. 2005); Guam Soc’y of
Obstetricians & Gynecologists v. ADA, 100 F.3d 691, 696 (9th Cir. 1996)
CARSON v. BILLINGS POLICE DEPARTMENT 19225
for lodestar calculations. The standard is “prevailing market
rate of the relevant community.”6 For fee-shifting purposes in
this English-rule area, use of the general market rate rather
than the contract rate affords some fairness, predictability and
uniformity. That a lawyer charges a particular hourly rate, and
gets it, is evidence bearing on what the market rate is, because
the lawyer and his clients are part of the market. But there is
such a thing as a high charger and low charger, and the dis-
trict judge is supposed to use the prevailing market rate for
attorneys of comparable experience, skill and reputation,
which may or may not be the rate charged by the individual
attorney in question.7
[5] Plaintiff’s attorney argues that the explanation for cut-
ting his rate provided by the district court is insufficient, and
our dissenting colleague agrees. It is incumbent upon the dis-
trict court to explain why it reduces plaintiff’s lawyer’s
charged rate, and the explanation must be sufficient to allow
for meaningful review, under Jordan v. Multnomah County.8
Fees under 42 USC 1988 must be based on the market rates
“prevailing in the community” for lawyers with “reasonably
comparable skill, experience and reputation.”9
[6] Though the district judge’s explanation was terse, on
this record there was nothing more to explain. One side sub-
mitted evidence of the prevailing community rate, the other
side didn’t, and the judge went with the uncontradicted evi-
(quoting Davis v. City & County of S. F., 976 F.2d 1536, 1547 (9th Cir.
1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993));
Chalmers v. City of Los Angeles, 796 F.2d 1205 (9th Cir. 1986).
6
Id.7
See, e.g., Blum v. Stenson, 465 U.S. 886, 895-97 (1984); Dang v.
Cross, 422 F.3d 800, 812-13 (9th Cir. 2005); Chalmers v. City of Los
Angeles, 796 F.2d 1205 (9th Cir. 1986).
8
Jordan v. Multnomah County, 815 F.2d 1258 (9th Cir. 1987).
9
Id. at 1262-63 (citing Blum v. Stenson, 465 U.S. 886, 895-97 (1984).
19226 CARSON v. BILLINGS POLICE DEPARTMENT
dence he had. It is striking that in his own and other lawyers’
several affidavits in support of plaintiff’s attorney’s claim, not
a single individual says that any other lawyer charges as high
an hourly rate, even after the defense affidavits establishing
a lower community rate had been submitted. The judge went
at the high end of the range that the uncontradicted evidence
showed to be the community rate. Once the judge found $150
per hour to be “reasonable given the prevailing rates in Mon-
tana.” there was not much else to say, given the uncontra-
dicted record establishing that this was so. Evidence
establishing that the prevailing community rate is lower than
the attorney’s charged rate is a sufficient reason to cut the rate
used in the lodestar calculation.
We respectfully disagree with our dissenting colleague’s
view that Jordan v. Multnomah County10 and Sorenson v. Mink11
require a different result. In Jordan, plaintiff’s attorneys “sub-
mitted evidence . . . to show that the claimed rates were in line
with those prevailing in the community,”12 so the judge’s
choice of a lower rate needed to be explained, but in the case
at bar, they did not. Likewise, in Sorenson, the district court
set fees at $132 per hour in the face of affidavits establishing
that the plaintiffs’ attorneys’ rates ranging from $150 to $350
per hour were “in line with those prevailing in the community
for law similar services by lawyers of reasonably comparable
skill, experience and reputation.”13 We vacated because the
district court “must use” the “market rate” and “did not find
that $132 was the market rate.”14 In this case, the district court
did indeed find, based on substantial evidence, that the $150
rate it used was the market rate.
10
Id.11
Sorenson v. Mink, 239 F.3d 1140 (9th Cir. 2001).
12
Jordan, 815 U.S. at 1263.
13
Sorenson, 239 F.3d at 1149.
14
Id. at 1149-50.
CARSON v. BILLINGS POLICE DEPARTMENT 19227
B. Deducted Hours
[7] The district court disallowed 21.5 of counsel’s claimed
hours as unreasonable, amounting to $3,225 at $150 per hour,
and explained why. The time was spent on a motion to
enforce the administrative decision before the defendants’
time to seek judicial review had elapsed, and plaintiff filed it
in the wrong venue. The district court may not “uncritically”
accept the number of hours claimed by the prevailing party,
even if actually spent on the litigation,15 but must, in order to
award fees based on them, find “that the time actually spent
was reasonably necessary.”16 The district court’s reasons for
disallowing this small portion of the time plaintiff’s attorney
applied to the case were sufficient, and sufficiently explained.
AFFIRMED.
GRABER, Circuit Judge, concurring in part and dissenting in
part:
I concur in part and dissent in part.
I agree that the district court did not abuse its discretion in
disallowing 21.5 hours. To that extent, I concur.1
But I dissent from the majority’s conclusion that the district
court sufficiently explained its determination of the hourly
rate, and from its conclusion that there was no evidence of
any other applicable rate. Title 42 U.S.C. § 1988 refers only
15
Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1385 (9th Cir. 1984).
16
Id.1
I concur because the district court permissibly relied on the fact that the
hours in dispute were spent on a premature, and thus unnecessary, docu-
ment. But the filing was not in the wrong venue, which was the district
court’s second reason.
19228 CARSON v. BILLINGS POLICE DEPARTMENT
to “reasonable” fees. Reasonableness means the prevailing
market rate in the relevant community. Blum v. Stenson, 465
U.S. 886, 895 (1984). However, the Supreme Court has rec-
ognized that the market rate varies greatly depending on skill,
experience, and reputation; where the requested rate is in line
with the rates for similar services by comparably skilled,
experienced, and reputable attorneys, it “is normally deemed
to be reasonable.” Id. at 895 n.11.
The district court, in two sentences, made this conclusory
comment as to how it arrived at the hourly rate of $150 per
hour: in March 2003 “courts” in the district had awarded
Plaintiff’s counsel that amount in some other unnamed case
or cases, and this rate is “reasonable given the prevailing rates
in Montana.” But Plaintiff’s counsel had submitted six affida-
vits (including his own) to support the requested $195 per
hour—which was counsel’s actual billing rate—for civil
rights litigation in Montana at the relevant time. For example,
a former HUD official who worked with Mr. Kelly stated that,
“based on my awareness of rates charged and services ren-
dered by attorneys with comparable skill, experience and abil-
ity within the states covered by the HUD Rocky Mountain
region, the current rate charged by Mr. Kelly is reasonable
and appropriate and would be considered low in many areas
given his level of expertise.” Other affidavits explain that Mr.
Kelly’s rate is reasonable because he is more knowledgeable
and efficient than other lawyers. The district court did not
address any of this evidence; neither did the court explain
why “Montana” in general is the relevant community, rather
than the community of civil rights lawyers, or Mountain
States lawyers, or particularly efficient and knowledgeable
lawyers.
In Jordan v. Multnomah County, 815 F.2d 1258, 1263 (9th
Cir. 1987), we held that the district judge abused his discre-
tion because he “made no finding on the sufficiency of the
evidence” and “remain[ed] silent as to how . . . he reached the
‘reasonableness’ conclusion.” More recently, in Sorenson v.
CARSON v. BILLINGS POLICE DEPARTMENT 19229
Mink, 239 F.3d 1140, 1149 (9th Cir. 2001), we reversed and
remanded a fee decision because “[w]e cannot determine from
the district court’s order whether it accepted Plaintiffs’ evi-
dence concerning the market rate or, if not, why not.” Here,
although we can see that the district court did not accept
Plaintiff’s evidence concerning the market rate, we cannot
determine “why not” in a meaningful way because of the
court’s failure to address Plaintiff’s evidence. The court did
not “provide a clear indication of how it exercised its discre-
tion.” McGrath v. County of Nev., 67 F.3d 248, 253 (9th Cir.
1995).
For these reasons, I respectfully dissent in part. In my view,
the fee question should be remanded to the district court for
further findings, as our precedent dictates.