Guam Society of Obstetricians & Gynecologists v. Ada, PLAINTIFFS-APPELLEES
| Citation | 100 F.3d 691 |
| Decision Date | 01 May 1995 |
| Docket Number | DEFENDANTS-APPELLANTS,PLAINTIFFS-APPELLEES,No. 94-15070,94-15070 |
| Parties | GUAM SOCIETY OF OBSTETRICIANS AND GYNECOLOGISTS, GUAM NURSES ASSOCIATION; THE REVEREND MILTON H. COLE, JR.; LAURIE KONWITH; EDMUND A. GRILEY, M.D.; WILLIAM S. FREEMAN, M.D.; AND JOHN DUNLOP, M.D.; ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, AND ALL THEIR WOMEN PATIENTS,, v. JOSEPH F. ADA, IN HIS PERSONAL AND OFFICIAL CAPACITIES, ET AL., |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Maria Fitzpatrick, Agana, Guam (argued); Arnold H. Leibowitz, Special Assistant Attorney General for Guam, Washington, D.C., for the defendant-appellant.
Simon Heller, The Center for Reproductive Law & Policy, New York, New York (argued); Anita Arriola, Arriola, Cowan & Bordallo, Agana, Guam (argued), for the plaintiffs-appellees.
Appeal from the United States District Court for the District of Guam, Alex R. Munson, Chief Judge, Presiding. D.C. No. CV-90-00013-ARM.
Before: Pregerson, Kozinski and Hawkins, Circuit Judges.
Defendants-appellants Joseph Ada, Governor of Guam, and other territorial officials appeal the district court's award of attorneys' fees under 42 U.S.C. 1988 to plaintiffs-appellees Guam Society of Obstetricians & Gynecologists, Guam Nurses Association ("GNA"), Dr. Edmund A. Griley, Dr. William S. Freeman, Dr. John Dunlop, Reverend Milton H. Cole, Jr. and Laurie Konwith. The fee award arises out of plaintiffs' successful constitutional challenge to Guam's anti-abortion statute. We previously vacated the initial award of attorneys' fees and remanded for the district court to consider intervening case law. On remand, the district court reinstated the full amount of the original award and also awarded plaintiffs interest from the date of the initial fee award as well as interim fees. This appeal concerns the district court's decision on remand.
In March of 1990, plaintiffs brought an action challenging the constitutionality of Guam Public Law 20-134, which outlawed virtually all abortions on Guam. The district court declared the law unconstitutional and granted plaintiffs' request for a permanent injunction against its enforcement. We affirmed. See Guam Soc'y of Obstetricians and Gynecologists v. Ada, 776 F. Supp. 1422 (D. Guam 1990), aff'd 962 F.2d 1366 (9th Cir.), cert. denied, 506 U.S. 1011, 121 L. Ed. 2d 564, 113 S. Ct. 633 (1992) ("GSOB/GYN").
On June 25, 1991, the district court awarded plaintiffs attorneys' fees and costs under 1988 in the total amount of $443,642.56. Most of the plaintiffs were represented locally by the law firm of Arriola, Cowan & Bordallo ("AC&B"). GNA and Laurie Konwith were represented by the American Civil Liberties Union's Reproductive Freedom Project ("ACLU-RFP"), which is based in New York. An attorney from the Guam office of the ACLU also worked on the case.
The district court awarded fees for local counsel based upon hourly rates between $150.00 and $200.00 per hour.1 The district court determined that these rates reflected the "prevailing market rates" for lawyers of similar skill and experience. In setting the hourly rate, the district court also found that:
each attorney's skills contributed to the successful result, which was achieved in a compressed time frame. Each attorney still faces the prospect of no recovery of fees or costs.
The district court then calculated the lodestar by multiplying these hourly rates by the number of hours reasonably spent on the litigation.
The district court also concluded that this was a "rare and exceptional case" which warranted a multiplier of 2.0 to the lodestar figure for AC&B. The district court relied in part on the contingent nature of local counsel's representation. However, the district court also found that plaintiffs would have faced substantial difficulty in securing other counsel to represent them and that this was an "undesirable" case given its visibility and controversial nature in Guam's small and predominantly Catholic community.
The district court determined that the prevailing market rates for ACLU-RFP counsel were between $25.00 and $241.00 per hour.2 These rates were supported by affidavits from other New York attorneys. The district court also mentioned the following factors in justifying the rates: (1) the attorneys' skill and experience; (2) the novel legal issues the case presented; (3) the distance between New York (where the ACLU-RFP attorneys practice) and Guam; (4) the short time frame in which the case was litigated; (5) the results obtained; (6) the lack of legal resources available on Guam; and (7) the possibility that no fees or costs would be recovered. It declined to apply any lodestar multiplier to the ACLU-RFP award.
In December of 1991, defendants appealed the fee award. Defendants argued that the district court erred in considering contingency risk in calculating the lodestar figure and in applying a multiplier. This argument was based upon several post-award decisions. See City of Burlington v. Dague, 505 U.S. 557, 120 L. Ed. 2d 449, 112 S. Ct. 2638 (1992); Gates v. Deukmejian, 987 F.2d 1392 (9th Cir. 1992); Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993). In Dague, the Supreme Court held that enhancement above the lodestar amount for contingency risk is not proper for fee awards under 42 U.S.C. 6972(e) or 33 U.S.C. 1365(d). Davis extended Dague to calculation of the lodestar itself, and Gates extended Dague to 1988 fee awards. We therefore vacated the attorneys' fees award and remanded for the district court to consider these cases.
Defendants also argued that the district court erred by awarding attorneys' fees for the ACLU-RFP work performed on behalf of plaintiffs GNA and Laurie Konwith, who, defendants maintained, did not have standing. We instructed the district court to consider the standing issue on remand.
On remand, the district court declined to reduce the lodestar figure it calculated for local and ACLU-RFP counsel and also declined to reduce the 2.0 multiplier for AC&B. It concluded that even without considering the contingency risk, the hourly rates and multiplier were justified. The district court also rejected defendants' standing arguments. The district court awarded interest on all fees and costs to run from the date of the entry of initial judgment as well as interim "uncontested" fees to AC&B. The total amount of the award was $552,790.92.
Defendants now appeal the district court's decision on remand. Defendants contend the district court erred in determining counsel's hourly rate and in refusing to eliminate, or at least reduce, the multiplier upon remand. They also challenge the award of fees against the Governor of Guam and the award of interest.
A district court's decision to award fees and their amount is reviewed for abuse of discretion. Bouman v. Block, 940 F.2d 1211, 1235 (9th Cir.), cert. denied, 502 U.S. 1005, 116 L. Ed. 2d 658, 112 S. Ct. 640 (1991). "The abuse of discretion standard applies not only to the basic fee computation, but also to the multiplier." Id. Factual findings supporting an award are reviewed for clear error. Price v. Seydel, 961 F.2d 1470, 1475 (9th Cir. 1992). Whether the district court applied the correct legal standard is reviewed de novo. Notrica v. FDIC, 2 F.3d 961, 964 (9th Cir. 1993).
42 U.S.C. 1988 provides in relevant part:
In any action or proceeding to enforce a provision of section[ ] . . . 1983 . . . of this title . . . the district court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.
42 U.S.C. 1988(b). "Reasonable fees" under 1988 "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, 79 L. Ed. 2d 891, 104 S. Ct. 1541 (1984). The burden is on the plaintiff to demonstrate "that the requested rates are in line with those [rates] prevailing in the community for similar services by lawyers of reasonably comparable skill, experience, and reputation." Id. at 895 n. 11.
There is no dispute here that the relevant community for the AC&B award is Guam. In setting the hourly rates, the district court properly considered declarations from Guam attorneys regarding the prevailing market rates. See Davis, 976 F.2d at 1547 () (alteration in original) (quoting Bouman, 940 F.2d at 1235).
Those affidavits clearly support the district court's determination that $175 per hour is the prevailing market rate for Ms. Arriola's services. For example, J. Bradley Klemm submitted an affidavit stating that $175 "is reasonable and well within the range of billing rates for attorneys on Guam for a case of this magnitude and controversy." James S. Brooks, who has practiced law on Guam since 1968, submitted an affidavit stating that $300 an hour would be reasonable given the complexity of the case, Ms. Arriola's experience in class action litigation, and the considerable hostility the suit engendered in the community. He further stated that he was "frankly surprised" at AC&B's usual hourly rates and that those rates seemed low when compared to the rates of other firms with which he was familiar. G. Patrick Civille submitted an affidavit stating that his firm would charge $200 an hour "for having a...
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