Bell v. Clackamas County

341 F.3d 858, 2003 WL 22025134
CourtCourt of Appeals for the Ninth Circuit
DecidedAugust 29, 2003
DocketNos. 01-35508, 01-35854, 01-35545, 01-35790
StatusPublished
Cited by72 cases

This text of 341 F.3d 858 (Bell v. Clackamas County) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bell v. Clackamas County, 341 F.3d 858, 2003 WL 22025134 (9th Cir. 2003).

Opinion

ORDER AND AMENDED OPINION

ORDER

The opinion filed August 20, 2003, slip op. 11661, is amended as follows:

Delete entire section IV, on page 22, slip op. 11679-11680, and replace with the new section IV:

IV.

Bell also cross-appeals the trial court’s reduction of his attorneys’ hourly rates from $200 to $175. He argues that the trial court erred in relying on an unpublished decision, Davis v. Wyatt, CV 97-1388-ST (D.Or. Oct. 20, 1998), to award attorney fees here for work performed in 2000 and 2001 at the same rate awarded in that 1998 decision. We agree.

A court awarding attorney fees must look to the prevailing market rates in the relevant community. See Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). We have held that the court has discretion to apply the rates in effect at the time the work was performed, see Barjon v. Dalton, 132 F.3d 496, 502(9th Cir.1997); Schwarz v. Secretary of HHS, 73 F.3d 895, 908-09 (9th Cir.1995). The court may also award rates at an attorney’s current rate where appropriate to compensate for the lengthy delay in receiving payment:

Our cases have repeatedly stressed that attorney’s fees awarded under this statute are to be based on market rates for the services rendered. Clearly, compensation received several years after the services were rendered — as it frequently is in complex civil rights litigation — is not equivalent to the same dollar amount received reasonably promptly as the legal services are performed, as would normally be the case with private [861]*861billings. We agree, therefore, that an appropriate adjustment for delay in payment — whether by the application of current rather than historic hourly rates or otherwise — is within the contemplation of the statute.

Missouri v. Jenkins by Agyei, 491 U.S. 274, 284, 109 S.Ct. 2463, 105 L.Ed.2d 229 (1989) (internal citations omitted).

We hold, however, that it was an abuse of discretion in this case to apply market rates in effect more than two years before the work was performed. Accordingly, we reverse and remand for the trial court to re-evaluate Bell’s request for attorney fees without relying solely on the prevailing rates established in 1998.

We also hold that the trial court did not err in declining to apply a multiplier. Bell failed to meet his burden of proving that an upward adjustment was appropriate. See Blum, 465 U.S. at 898-99, 104 S.Ct. 1541.

OPINION

GOODWIN, Circuit Judge:

Carmichell Bell, the first African-American deputy ever hired by the Clackamas County Sheriffs Office (CCSO), was awarded substantial damages by a jury on his retaliation and discrimination claims under Title VII, and 42 U.S.C. §§ 1981 and 1983. The defendants appeal the judgment; Bell cross-appeals the trial court’s reduction of punitive damages and attorney fees.1 We affirm in part, and reverse and remand in part.

I.

Bell worked as a Lake Oswego police officer from February 1,1996 until December 28, 1997, when he accepted a position at CCSO as a probationary recruit deputy. At that time, he had successfully completed the Oregon Basic Police Course as well as Lake Oswego’s Field Training and Evaluation Program (FTEP), which is similar to CCSO’s FTEP. Bell had also obtained significant law enforcement training in the Army, where he served in the Military Police. Bell received high scores in Lake Oswego’s FTEP for acceptance of feedback, orientation, officer safety, report writing, and radio use. Bell had completed his probationary period with the Lake Oswego Police Department (LOPD) and had been placed on regular status when he resigned to work at CCSO. Lake Oswe-go’s Chief of Police told the jury that Bell would have progressed rapidly at LOPD because of his demonstrated high level of competency.

CCSO increased Bell’s entry salary because of his “knowledge, experience and previous compensation.” CCSO then placed Bell in its FTEP, which, like Lake Oswego’s FTEP, consists of five phases. A recruit’s performance is documented for each shift on a Daily Observation Report (DOR), which asks Field Training Officers (FTO) to grade the recruit in 31 performance areas. Scoring is on a one to seven scale, with four being the minimal acceptable score. Recruits are allowed to make mistakes and can successfully complete FTEP with a number of scores below four; scores are monitored only for patterns of substandard performance and are not averaged to determine success. A “not responding to training score” (NRT) is awarded when a recruit, after having received sufficient training, continues to perform unacceptably in a certain area.

Bell completed Phase I and advanced to Phase II, where his FTO was Deputy Layng. Layng recommended advancement and reported that Bell has great “people skills” and communicates well. [862]*862Bell then advanced to Phase III, where Deputy Jeff Davis, a defendant in this action, was his FTO from March 31, 1998, to May 1, 1998. In addition to making stereotypical comments about the local Russian immigrants, Davis told Bell to look for Asians in Asian cars and pull them over without probable cause because Asians steal Asian cars; he also told Bell to pull over Latinos because they usually do not have insurance and stopping them can result in a “tow or a good ticket.” Bell also' testified: “I would try to pull over vehicles for violations, equipment violations, road violations. On several occasions [Davis] told me, ‘Carl, you need to quit looking at what the cars are doing and look at the people in the vehicles.’ ”

Bell told the jury that when Davis saw an interracial couple consisting of a black male and a white female, Davis would ask: “Why do the brothers always get the fat, ugly girls?” Davis further asked Bell why “black men like women with big butts,” and whether it was “true that black men have bigger dicks.” Davis also bragged about how some deputies have power to get a trainee “washed out of the program.” Bell explained that he did not complain about Davis’ conduct during Phase III because he wanted to move on in the program and thought he would be finished dealing with inappropriate racial comments after Davis was no longer his FTO.

Davis’ DORs for Bell reflected satisfactory to superior scores for acceptance of feedback, report writing, officer safety, investigation, decision-making, police-stops, and orientation. Out of a total of 419 scores, Davis gave Bell only fifteen unacceptable scores.

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341 F.3d 858, 2003 WL 22025134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bell-v-clackamas-county-ca9-2003.