Thompson v. Gomez

45 F.3d 1365, 1995 WL 25772
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 25, 1995
DocketNo. 93-16650
StatusPublished
Cited by29 cases

This text of 45 F.3d 1365 (Thompson v. Gomez) 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
Thompson v. Gomez, 45 F.3d 1365, 1995 WL 25772 (9th Cir. 1995).

Opinion

GOODWIN, Circuit Judge:

Title 42 U.S.C. § 1988 (“Fees Act”) provides that in federal civil rights actions “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” Recoverable attorney’s fees may include fees incurred while doing work on the underlying merits of the action (“merits fees”) as well as fees incurred while pursuing merits fees (“fees-on-fees”). Clark v. City of Los Angeles, 803 F.2d 987, 992 (9th Cir.1986). The district court ruled that plaintiffs could recover fees-on-fees only to the degree that their underlying application for merits fees was successful. The issue in this case is whether the district court erred.

I.

In 1979, plaintiffs filed the underlying class action pursuant to 42 U.S.C. § 1983, on behalf of condemned prisoners at San Quentin State Prison. In 1980, the district court approved a consent decree that requires the defendants to improve prison housing conditions. The defendants’ duty is a continuing one. A court-appointed monitor and the plaintiffs oversee the consent decree.

Periodically, the plaintiffs submit applications for recovery of fees earned while overseeing implementation of the consent decree. These are the “merits fees.” Plaintiffs (who are attorneys) do not litigate issues concerning their merits fees themselves. Instead, they have retained “special fees counsel” who litigate those issues for them. Of course, “special fees counsel” have to eat too. The fees they earn while litigating the plaintiffs’ merits fees are the “fees-on-fees.”

In December 1989, plaintiffs submitted an application for recovery of most of the fees that had been incurred up to that time. Defendants objected to some of the plaintiffs’ billing practices. On December 12,1990, the parties settled the matter with the blessing of a magistrate judge. The plaintiffs ultimately obtained approximately 87.2% of the amount originally sought.

In July 1992, plaintiffs submitted a fees claim that picked up where the December 1990 settlement had left off. This claim sought merits fees owed since October 1989, and fees-on-fees owed since September 1990. The defendants paid what fees they considered undisputed, but objected to other fees. Their chief objection was to plaintiffs’ demand for 100% of the fees-on-fees generated from September 1990 until the December 12, 1990 settlement date. Since plaintiffs had been only 87.2% successful on their underlying merits fees claim, the defendants argued that plaintiffs should recover no more than 87.2% of their fees-on-fees.

[1367]*1367In February 1993, plaintiffs moved to compel payment of the disputed portions of the fees statement. In June 1993, the magistrate judge recommended that plaintiffs be awarded only 87.2% of the fees-on-fees requested for work done between September 1990 and December 12, 1990. The magistrate judge agreed with the defendants that plaintiffs should not be reimbursed for the proportionate amount of fees-on-fees incurred to recover unsuccessful fee demands. The magistrate judge then proposed the order that “[plaintiffs’ [fees-on-fees], now and in the future, will be subject to a reduction in proportion to the amount actually awarded for merits work in the underlying action.”

The district court approved the magistrate judge’s recommendation on July 29, 1993. The district court concluded that it had discretion to order the arithmetic reduction of fees-on-fees for attorney time spent pursuing unsuccessful merits fees requests,1 then did so.

II.

In the typical case, this court reviews the fee award for abuse of discretion. Stewart v. Gates, 987 F.2d 1450, 1452 (9th Cir.1993). Because the district court applied an arithmetic formula to reduce future as well as past fees-on-fees, plaintiffs argue that this case is not typical and the court’s review is de novo.

Certainly, we consider de novo the question whether the legal principles for recovering attorney’s fees laid out in Hensley v. Eckerhart, 461 U.S. 424, 103z S.Ct. 1933, 76 L.Ed.2d 40 (1983) apply to requests for fees-on-fees — and we conclude that Hensley’s principles do apply. But that does not settle the matter, because we must further determine whether the district court kept faith with Hensley when it reduced the plaintiffs’ fee. Hensley holds that a fee award may be reduced to make it “reasonable in relation to the success achieved.” 461 U.S. at 436, 103 S.Ct. at 1941. In Harris v. McCarthy, 790 F.2d 753, 759 (9th Cir.1986), we applied an abuse of discretion standard to review the district court’s decision to reduce fees-on-fees in the proportion it reduced merits fees. We draw no distinction between a decision to apply those principles of proportionate reduction to fees applications already before the district court, and a decision to apply those same principles prospectively, to applications not yet presented to the district court. Consequently, we follow Harris and review for abuse of discretion.

III.

Hensley applies to requests for fees-on-fees, and its principles support the district court’s decision not to award fees-on-fees for time spent pursuing unsuccessful merits fees demands.

A.

In Commissioner, I.N.S. v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990), the Supreme Court considered the district court’s range of discretion to discount a fees-on-fees request in suits brought under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A). The Court explained that “[e]xhorbitant, unfounded, or procedurally defective fee applications — like any other improper position that may unreasonably protract proceedings — are matters that the district court can recognize and discount.” Id. at 163, 110 S.Ct. at 2321. In a footnote, the Court explicitly discussed how the district courts should apply Hensley to requests for fees-on-fees:

Because Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983), requires the district court to consider the relationship between the amount of the fee awarded and the results obtained, fees for fee litigation should be excluded to the extent that the applicant ultimately fails to prevail in such litigation. For example, if the Government’s challenge to a requested rate for paralegal time resulted in the court’s recalculating and reducing the award for paralegal time from the requested amount, then the appli[1368]*1368cant should not receive fees for the time spent defending the higher rate.

Id. n. 10.

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45 F.3d 1365, 1995 WL 25772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-v-gomez-ca9-1995.