Hiken v. Dep't of Def.

• Decision Date: 06 September 2016
• Docket Number: No. 13–17073,13–17073
• Parties: Marguerite Hiken; The Military Law Task Force, Plaintiffs–Appellants v. Department of Defense; United States Central Command, Defendants–Appellees
• Court: U.S. Court of Appeals — Ninth Circuit

836 F.3d 1037

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

No. 13–17073

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 20, 2015 San Francisco, California
Filed September 6, 2016

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.^*

Dissent by Judge Rawlinson

OPINION

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.

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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.

BACKGROUND

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

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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 Amend the Judgment

In September 2012, MLTF moved pursuant to Rule 59(e) to amend the judgment on the ground that the district court had improperly calculated the fee award. MLTF argued that, contrary to the district court's opinion, it had submitted evidence of the prevailing market rates from 2006 and 2008, and that the court's calculation had resulted in an unreasonably low award. The Government argued that the district court had properly considered historical rates in arriving at the hourly rate, and that the total award was more than reasonable because MLTF had been compensated for all of its billed hours, despite being only partially successful in the litigation.

The motion was referred to a magistrate judge (Westmore, J.), who recommended that MLTF's motion be granted because MLTF had, in fact, submitted declarations showing the prevailing market rates during the applicable period, and thus the district court's finding to the contrary was clear error. Finding that MLTF had submitted adequate evidence, Judge Westmore undertook her own examination of

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the prevailing rates and determined that an appropriate fee award would be $257,776.50. She supported her recommendation by creating a chart showing the appropriate billing rate for each attorney during the relevant periods.

The Government moved for the...