United Steelworkers v. Phelps Dodge Corp.

896 F.2d 403
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 16, 1990
DocketNo. 88-2517
StatusPublished
Cited by239 cases

This text of 896 F.2d 403 (United Steelworkers v. Phelps Dodge Corp.) 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.

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United Steelworkers v. Phelps Dodge Corp., 896 F.2d 403 (9th Cir. 1990).

Opinion

CANBY, Circuit Judge:

United Steelworkers of America and other plaintiffs appeal the district court’s order awarding them attorneys’ fees under 42 U.S.C. § 1988 in an amount significantly less than they requested. There is no dispute that plaintiffs meet the prerequisites for an award of fees under section 1988. The only issue on appeal is the amount of the fee awarded. We review the district court’s award for an abuse of discretion. Quesada v. Thomason, 850 F.2d 537, 538 (9th Cir.1988). Finding such an abuse, we reverse and remand for recalculation of the fee.

BACKGROUND AND PROCEDURAL HISTORY

Six unions and fifteen individuals, the plaintiffs here, filed suit against Pima County, various officials and employees of the county, the Arizona Department of Public Safety, and the Phelps Dodge Corporation for violations of the plaintiffs’ civil rights under 42 U.S.C. § 1983. The events triggering the lawsuit stem from a strike at the Phelps Dodge copper mining operations in Ajo, Arizona.

The plaintiffs won a jury verdict against Pima County, the Pima County Sheriff’s office, and the Sheriff and several deputy sheriffs named individually as defendants. Other defendants had been dismissed prior to trial, or had won summary judgment on immunity grounds.1 Phelps Dodge was granted summary judgment prior to trial, but that decision was later appealed and reversed by this court. United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 1539 (9th Cir.1989) (en banc).

The plaintiffs subsequently filed an application, under 42 U.S.C. § 1988, for attorneys’ fees. They sought compensation for 3,656.40 hours, which were billed at three different rates, for the three attorneys who worked on the case. Michael McCrory, the lead counsel, billed 2,424.95 hours at $130 per hour. Gerald Pollock billed 317.50 hours at $150 per hour, and Sherry Teach-nor billed 913.95 hours at $100 per hour. In addition, the application requested $20,-309.25 for time billed by law students working as law clerks and by paralegals, and $29,790.91 for out-of-pocket litigation expenses. The plaintiffs had already been awarded $31,612.40 for costs under 28 U.S.C. § 1920.

The application for fees also disclosed that one of the union plaintiffs, United Steelworkers of America, had entered into a fee agreement with plaintiffs’ attorneys. The agreement provided that United Steelworkers would pay hourly attorneys’ fees and out-of-pocket expenses during the course of the litigation, but would be reim[406]*406bursed for those fees and expenses out of any statutory fee award.

The district court, in an order dated January 29, 1988, awarded plaintiffs $150,000 in attorneys’ fees, and did not award any litigation expenses. The court did not specify the number of hours it deemed reasonable, or the hourly rate at which the court compensated the attorneys. The plaintiffs filed a motion to reconsider and clarify the award. The district court filed an order May 10, 1988, which stated that it had used an hourly fee of $100 per hour, and had determined that 1,500 hours could reasonably have been expended on the litigation. Plaintiffs filed a notice of appeal on April 5, 1988.2

DISCUSSION

A prevailing party in a section 1983 action is entitled to a reasonable attorneys’ fee under section 1988 absent exceptional circumstances. See Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983). To determine what fee should be awarded, the court must first determine the “lodestar,” which is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. Id. at 433, 103 S.Ct. at 1939; Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir.1986), opinion amended, 808 F.2d 1373 (9th Cir.1987). The Kerr factors are used in this preliminary determination of the lodestar.3 See Chalmers, 796 F.2d at 1211. After the lodestar is determined, the court may make adjustments, depending on the circumstances of the case. Blum v. Stenson, 465 U.S. 886, 897, 104 S.Ct. 1541, 1548, 79 L.Ed.2d 891 (1984). Factors subsumed in the original determination of reasonable hours and rates, however, should not be used to adjust the lodestar figure. Id. at 898-99, 104 S.Ct. at 1548-49; Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir.1987). Calculating the lodestar is the critical inquiry, therefore, because there is a strong presumption that it is a reasonable fee. Jordan, 815 F.2d at 1262.

The district court must provide a concise but clear explanation of its reasons for the fee award. Hensley, 461 U.S. at 437, 103 S.Ct. at 1941. Explicit mathematical calculations are not required, but without a clear explanation of what the district court did, this court cannot review the award in a meaningful manner. Chalmers, 796 F.2d at 1213. Where the fee award differs significantly from that offered and documented by counsel, some explanation as to how the district court arrived at its figures is necessary. Domingo v. New England Fish Co., 727 F.2d 1429, 1447, modified, 742 F.2d 520 (9th Cir.1984).

1. Reasonable Hours

In this case, the district court awarded fees for 1,500 hours of work. The plaintiffs had requested, and supported in their documentation, fees for 3,656.40 hours. Without an indication from the dis[407]*407trict court of how it arrived at 1,500 hours, we find ourselves unable to review the district court’s determination of the number of hours reasonably expended on the litigation. The number of hours was significantly reduced, with inadequate documentation of the reasons for the wholesale reductions in hours. The district court apparently had some concerns about hours billed that may not have been necessary or properly related to the claims, but there is no indication of the number of hours deducted for these reasons. In addition, the district court apparently disallowed hours spent on a moot court trial run, and on consultations regarding a jury project related to the case. We see no reason why these hours cannot be included in a fee award as long as the number of hours spent was reasonable.

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