Barjon v. Dalton, 96-17117
| Decision Date | 22 December 1997 |
| Docket Number | No. 96-17117,96-17117 |
| Citation | 132 F.3d 496 |
| Parties | 97 Cal. Daily Op. Serv. 9532, 97 Daily Journal D.A.R. 15,311 Darnella BARJON and Lee Duran, Plaintiffs-Appellants, v. John H. DALTON, Secretary of the Navy, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Elaine W. Wallace, Oakland, CA, for Plaintiffs-Appellants.
Michael A. Hirst and Mary L. Grad, Assistant United States Attorneys, Sacramento, CA, for Defendant-Appellee.
Appeal from the United States District Court for the Eastern District of California; David F. Levi, District Judge, Presiding. D.C. No. CV-95-01598 DFL/JFM.
Before: CHOY, ALARCON, and T.G. NELSON, Circuit Judges.
Plaintiffs-Appellants Darnella Barjon ("Barjon") and Lee Duran ("Duran") appeal the grant of summary judgment in favor of Defendant-Appellee John Dalton, Secretary of the Navy ("Secretary"). Appellants claim that the district court erred in denying them additional attorney's fees in excess of those already awarded by the Secretary for attorney Elaine Wallace's ("Wallace") successful work in their administrative proceedings.
Specifically, Barjon and Duran argue that the district court erred in the following respects: 1) defining the relevant legal community as the Sacramento area instead of the San Francisco area; 2) limiting Sacramento's prevailing market rate for employment discrimination cases in 1994 to $200 per hour; 3) failing to compensate for the delay in payment of fees; and 4) failing to award reasonable law clerk costs.
We AFFIRM the decision of the district court in all respects, except on the issue of law clerk costs which we REVERSE.
Darnella Barjon and Lee Duran filed administrative complaints against John Dalton, as Secretary of the Navy, alleging discrimination while working for the federal government at Mare Island Naval Shipyard located in the city of Vallejo. Barjon and Duran each paid Elaine Wallace, whose office is located in Oakland, the sum of $1 to serve as attorney in their respective proceedings.
On March 4, 1993, Barjon filed a formal administrative complaint alleging discrimination on the basis of sex. An Administrative Judge found that Barjon had been subjected to discrimination and recommended her promotion. 1 In a final decision dated April 18, 1994, the Secretary adopted the judge's recommendation. As a prevailing party, Barjon became entitled to an award of reasonable attorney's fees and costs from the Secretary. 2
As Barjon's counsel, Wallace petitioned for attorney's fees on April 25, 1994. She requested $14,380.90 based on her 57.15 hours (30.4 hours in 1993 and 26.75 hours in 1994) at $250 per hour, plus costs of $93.40. On June 6, 1994, the Secretary rejected Wallace's request and offered an hourly rate of $185-$200 per hour.
Wallace appealed to the Equal Employment Opportunity Commission, Office of Federal Operations ("EEOC-OFO"). But on August 11, 1995, the EEOC-OFO issued a final decision denying Wallace fees in excess of $200 per hour.
Having exhausted all administrative remedies, Wallace filed suit in federal court, in the Sacramento area which is part of the Eastern District of California, on September 1, 1995. On September 14, 1995, the Secretary issued a check for Barjon's undisputed fees and costs in the amount of $11,523.40 based on 57.15 hours at $200 per hour plus $93.40 in costs.
Duran's administrative matter was formalized on January 22, 1993. On August 17, 1994, Duran and the Secretary entered into a settlement of the administrative complaint, the terms of which included a provision for payment of reasonable attorney's fees.
Accordingly, on August 25, 1994, Wallace petitioned for $10,249.97 based on 40.10 hours (24.75 hours in 1993 and 15.35 hours in 1994) at $250 per hour, 3.60 hours for her law clerk Michael Fried at $25 per hour, plus costs of $134.97. As in the Barjon matter, the Secretary offered only $200 per hour.
On November 28, 1994, Wallace appealed to the EEOC-OFO. But the EEOC-OFO deemed the appeal premature and closed the file without processing the appeal.
On September 1, 1995, Wallace consolidated the Duran matter along with Barjon's case and filed in federal court in the Eastern District of California. On October 11, 1995, the Secretary sent a check to Wallace for the undisputed fees and costs in the amount of $8,154.97 based on 40.10 hours at $200 per hour plus $134.97 in costs. The amount did not include law clerk costs.
On August 9, 1996, Barjon and Duran filed a motion for summary judgment requesting the following relief: Attorney's fees based on a $250 hourly rate-instead of the $200 rate awarded by the Secretary for successful work in the administrative proceeding, an enhancement for the delay in payment of fees, and law clerk costs. On August 23, 1996, the Secretary filed an opposition as well as a cross-motion for summary judgment. On October 9, 1996, the district court denied Barjon and Duran's motion and granted the Secretary's motion for summary judgment.
Specifically, the district court found that Sacramento, not San Francisco, was the relevant market. Furthermore, it found that $200 was the prevailing hourly rate for similar work in the Sacramento area. The district court denied interest for the delay in payment of undisputed fees and did not address the issue of law clerk costs.
On October 21, 1996, Barjon and Duran filed this appeal.
An appellate court reviews an award of attorney's fees and costs for an abuse of discretion. Schwarz v. Secretary of Health & Human Services, 73 F.3d 895, 900 (9th Cir.1995) (citing Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983)). A district court abuses its discretion if its fee award "is based on an inaccurate view of the law or a clearly erroneous finding of fact." Id. (quoting Corder v. Gates, 947 F.2d 374, 377 (9th Cir.1991)).
Under 42 U.S.C. § 1988(b), a court has discretion to award reasonable attorney's fees to the prevailing party in specified cases. Ascertaining a reasonable award is sometimes complicated when a client is not charged his attorney's customary hourly rate. In this case for example, Barjon and Duran each paid Wallace $1 to serve as attorney in their respective proceedings.
But despite the actual fee charged by the attorney, the Supreme Court of the United States has determined that § 1988 attorney's fees are to be calculated according to the "prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or non-profit counsel." Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 1547, 79 L.Ed.2d 891 (1984). Therefore, the choice of a relevant community and the prevailing rate in that community are crucial to establishing the amount of attorney's fees granted.
We address each of these factors in turn.
Generally, the relevant community is the forum in which the district court sits. Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir.1991). However, rates outside the forum may be used "if local counsel was unavailable, either because they are unwilling or unable to perform because they lack the degree of experience, expertise, or specialization required to handle properly the case." Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir.1992).
In this case, Wallace filed Barjon and Duran's complaint with the Eastern District of California. The district court found insufficient evidence that competent local counsel was unavailable. Accordingly, the district court elected to apply the rates of the local forum-the Sacramento area-rather than the rates of Wallace's place of business-the San Francisco area. 3
Appellants argue that the local forum rule in Davis should not be applied in their case for two reasons-"geo-political realities" and civil rights enforcement.
First, Barjon and Duran contend that the "relevant community" in Davis is geo-politically different than the forum lines drawn for venue purposes. For example, Mare Island, where the cause of action arose, is located in Vallejo which the federal government considers part of the San Francisco, not Sacramento area, for pay purposes. By illustrating how the boundaries for venue are not always consistent with the geo-political realities of the local community in which the cause of action arises, Barjon and Duran assert that the "relevant community" should not be limited to a court's venue.
Unfortunately, Appellants have no legal precedent to support these assertions. They cite Rum Creek Coal Sales v. Caperton, 31 F.3d 169 (4th Cir.1994), as an example in which the "relevant community" included attorneys a short distance across the edge of the district's venue. However, this Fourth Circuit case actually confirmed Davis in stating "that the community in which the court sits is the first place to look to in evaluating the prevailing market rate." Rum Creek, 31 F.3d at 179.
A second basis offered on appeal by Barjon and Duran to deviate from the Davis presumption is facilitating cases of national importance. See, e.g., Zolfo, Cooper & Co. v. Sunbeam-Oster Co., Inc., 50 F.3d 253 (3d Cir.1995).
In particular, Barjon and Duran assert the importance of ensuring the widespread enforcement of civil rights. They rely on the rationale discussed in Casey v. City of Cabool, Missouri, 12 F.3d 799 (8th Cir.1993).
The relevant market for attorneys in a matter such as this [§ 1983] may extend beyond the local geographic community. A national market or a market for a particular legal specialization may provide the appropriate market. To limit rates to those prevailing in a local community might have the effect of limiting civil rights enforcement to those communities where the rates are sufficient to attract experienced counsel. Civil rights would...
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