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Date: 09-19-2019

Case Style:

Andrew Namiki Roberts v. City and County of Honolulu

Case Number: 16-16179

Judge: Johnnie B. Rawlinson

Court: United States Court of Appeals for the Ninth Circuit on appeal from the District of Hawaii (Honolulu County)

Plaintiff's Attorney: Richard L. Holcomb

Defendant's Attorney: Nicolette Winter and Curtis E. Shewood


Andrew Roberts (Roberts) appeals the district court’s
award of attorney’s fees to his counsel, Richard Holcomb
(Holcomb) and Alan Beck (Beck), following settlement of a
civil rights action. Specifically, Roberts contends that (1) the
district court applied an erroneous legal standard, and (2) the
district court abused its discretion in denying fees for work
performed before the settlement agreement was finalized.
Because we agree that the district court did not apply the
correct legal standard for awarding legal fees, we vacate and
remand for application of the correct legal standard. We also
remand for the district court to make a specific finding
regarding when the settlement agreement became final.
Roberts, a permanent resident of the United States, filed
a civil rights action pursuant to 42 U.S.C. § 1983 against the
City and County of Honolulu (the City). In his complaint,
Roberts alleged that the City violated his rights under the
Second, Fourth, and Fourteenth Amendments to the United
States Constitution when it denied Roberts a firearm permit
pursuant to a City policy requiring that permanent residents
obtain certain clearance documents from their country of
origin or their consulate.
Roberts served the City with a copy of the complaint
along with a demand letter signed by Holcomb. The demand
letter indicated Roberts’s willingness to settle, demanded
$8,000 in attorney’s fees and costs, and expressed an
intention to file a motion for preliminary injunction and/or
permanent injunction if Roberts’s demands were not met by
November 13, 2015. The City never responded to Roberts’s
demand letter. Instead, the City’s counsel sent an email to
Holcomb confirming that the City received a copy of the
complaint, but not the demand letter.
Holcomb sent a follow-up letter to the City on November
24, 2015, reiterating his original demands and increasing the
request for attorney’s fees to $12,000, on the ground that
Holcomb had commenced drafting the motion for a
preliminary injunction. The City responded to Holcomb the
next day, stating that “the City is generally open to settlement
discussions” and cautioning him to be “conscious of the
attorney’s fee issue,” as it might complicate settlement
The parties agreed to a discovery conference the
following week. At the discovery conference, the parties
agreed to a tentative settlement of all issues, with the
exception of the amount of attorney’s fees. The parties
continued negotiations, culminating in Holcomb emailing the
City a proposed settlement agreement on December 18, 2015.
In the accompanying email, Holcomb informed the City’s
counsel that if the City failed to respond to the proposed
settlement agreement by December 23, 2015, Holcomb would
file the motion for a preliminary injunction. On December
27, 2015, the City’s counsel responded to Holcomb,
reiterating the City’s intentions to settle. Holcomb replied
that he was prepared to file the motion for a preliminary
injunction, and had begun drafting the motion for judgment
on the pleadings (collectively, the Unfiled Motions).
However, Roberts never filed either of the motions.
A settlement agreement was finalized on January 21,
2016, and included most of the relief requested in the
complaint, with the exception of attorney’s fees. Roberts
subsequently submitted a motion for attorney’s fees and costs
(Attorney’s Fee Motion), seeking $40,191.43 in fees and
costs, which was opposed by the City. The assigned
magistrate judge recommended that the district court award
Roberts $13,912.04 in attorney’s fees, and $400 in costs. The
magistrate judge found unreasonable Holcomb’s requested
rate of $300 per hour, and Beck’s requested rate of $225 per
hour. The magistrate judge recommended reducing the rates
to $200 per hour for Holcomb and $150 per hour for Beck.
Additionally, the magistrate judge found that all hours
spent working on the Unfiled Motions were not reasonable
and necessitated a reduction. Roberts filed his objections to
the magistrate judge’s Findings and Recommendations; the
City filed its response; and Roberts filed a reply.
The district court adopted the magistrate judge
recommendation that Holcomb and Beck receive hourly rates
of $200 and $150, respectively. However, the district court
modified the recommended disallowance of all time spent on
the Unfiled Motions, and instead credited Holcomb with
hours spent on the Unfiled Motions through November 25,
2015. According to the district court, by that date the parties
had already agreed in principle to the contours of the
settlement and, consequently, hours spent after that date on
the Unfiled Motions were not “reasonably expended on the
litigation.” After adjustments, the district court awarded a
total of $21,02.95 in attorney’s fees and costs, an increase of
$7,390.91 over the amount recommended by the magistrate
judge. Roberts filed a timely appeal.
We review a district court’s award of attorney’s fees for
an abuse of discretion. See Dunlap v. Liberty Nat. Prods.,
Inc., 878 F.3d 794, 797 (9th Cir. 2017). “[W]hether the
district court applied the correct legal standard is reviewed de
novo.” Oregon Nat. Desert Ass’n v. Locke, 572 F.3d 610,
613–14 (9th Cir. 2009) (citation omitted).
A. Entitlement to Attorney’s Fees and Costs
As a preliminary matter, we first examine whether
Roberts is entitled to attorney’s fees. In an action brought
under 42 U.S.C. § 1983, a prevailing plaintiff is entitled to
reasonable attorney’s fees. See 42 U.S.C. § 1988(b). “A
plaintiff prevails for purposes of § 1988 when actual relief on
the merits of his claim materially alters the legal relationship
between the parties by modifying the defendant’s behavior in
a way that directly benefits the plaintiff. . . .” Higher Taste,
Inc. v. City of Tacoma, 717 F.3d 712, 715 (9th Cir. 2013)
(citation and internal quotation marks omitted).
Roberts received substantially all of his requested relief
in the settlement agreement. As a result, the magistrate judge
correctly conferred prevailing party status on Roberts and,
without objection from the parties, the district court adopted
the determination by the magistrate judge that Roberts was
the prevailing party. Accordingly, under 42 U.S.C. § 1988,
Roberts was entitled to reasonable attorney’s fees. See Vogel
v. Harbor Plaza Ctr., LLC, 893 F.3d 1152, 1158 (9th Cir.
1. Reasonable Fee
“Once a party is found eligible for fees, the district court
must then determine what fees are reasonable. . . .” Klein v.
City of Laguna Beach, 810 F.3d 693, 698 (9th Cir. 2016)
(citation omitted). Courts begin the analysis by applying the
lodestar method. See Bravo v. City of Santa Maria, 810 F.3d
659, 665–66 (9th Cir. 2016). Determining the lodestar
amount is a “two-step process.” Kelly v. Wengler, 822 F.3d
1085, 1099 (9th Cir. 2016) (citation omitted). First, a court
multiplies the number of hours “reasonably expended on a
case by a reasonable hourly rate.” Id. (citation omitted). The
reasonable hourly rate is determined by assessing “the
prevailing market rate in the relevant community.” Id.
(citation, alteration, and internal quotation marks omitted).
After the lodestar figure is determined, a district court retains
discretion to adjust the lodestar figure upward or downward
based on a variety of factors “not subsumed in the lodestar
figure.” Id. (citations omitted). At bottom, the goal of the
lodestar figure is to roughly approximate the fee the
prevailing attorney would have received from a paying client.
See id.

It is the responsibility of the attorney seeking fees to
submit evidence to support the requested hourly rate. See
Hensley v. Eckerhart, 461 U. S. 424, 433 (1983); see also
Camacho v. Bridgeport Fin., Inc., 523 F. 3d 973, 980 (9th
Cir. 2008).
To meet this obligation, Holcomb submitted his
own declaration detailing his education and experience; a
declaration from co-counsel Beck; declarations from other
attorneys licensed in Hawaii who were familiar with
Holcomb’s work as an attorney; and an (ill-advised)
declaration from a plumber. Holcomb also submitted a
newspaper article reflecting that the City paid its outside
counsel between $295 and $495 an hour, and the Laffey
Matrix, a table describing hourly rates in the D.C. area for
cases involving fee-shifting statutes.
Admittedly, Beck’s affidavit referred to his hourly rates
in San Diego, rather than in Hawaii, the “relevant
community.” Kelly, 822 F.3d at 1099; see also Camacho,
523 F.3d at 979 (explaining that “the relevant community is
the forum in which the district court sits”). Similarly, the
Laffey Matrix describes hourly rates in the D.C. area. And
inclusion of the plumber’s affidavit is inexplicable.
Nevertheless, the other material was of the type ordinarily
considered by courts to determine an appropriate lodestar
amount. See Camacho, 523 F.3d at 980 (“Affidavits of the
plaintiff[’s] attorneys and other attorneys regarding prevailing
fees in the community . . . are satisfactory evidence of the
prevailing market rate.”) (citation and original alterations
omitted); see also Hiken v. Dep’t of Def., 836 F.3d 1037,
1044 (9th Cir. 2016) (same).
The district court agreed with the magistrate judge that
the declarations submitted by Holcomb were not reliable
indicators of the prevailing market rate because the rates
“var[ied] significantly.” The district court noted that two
attorneys, “who have nine and a half and ten years of
experience, respectively, charge hourly rates of $250.00 and
$395.00.” A third attorney, “with nineteen years of
experience, charges only $350.00 per hour.” The district
court concluded that because of “the variation in the
declarations” the court was required to “look to other hourly
rates typical in this district in order to gain a better sense of
what is reasonable.” Consequently, the district court turned
to “the hourly rates awarded to Mr. Holcomb and Mr. Beck
in other civil rights cases in the district.”
The district court diverged from the applicable standard
in discarding the declarations entirely and considering only
previous fee awards in determining the prevailing market
rate. We expressed disapproval of this approach in Camacho,
noting that “a district court abuses its discretion to the extent
it relies on cases decided years before the attorneys actually
rendered their services.” 523 F.3d at 981 (citation omitted);
see also Moreno v. City of Sacramento, 534 F.3d 1106, 1115
(9th Cir. 2008) (“If the lodestar leads to an hourly rate that is
higher than past practice, the court must award that rate . . .”).
In Camacho, we observed that the district court failed to
indicate why the $200 hourly rate awarded “was in line with
those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience and
reputation.” 523 F.3d at 980 (citation and internal quotation
marks omitted). We remanded for the district court to
calculate the lodestar figure by determining the prevailing
hourly rate in the local legal community for similar work by
attorneys of comparable skill and experience. See id.
at 980–81.
We conclude that vacatur and remand are warranted in
this case for the same reason. Examining prior fee awards to
Holcomb and Beck in the district was not an acceptable
substitute for considering the declarations submitted by
Holcomb, and explaining why those declarations did or did
not establish the prevailing hourly rate in the district. See
McGrath v. County of Nevada, 67 F.3d 248, 253 (9th Cir.
1995) (“If the district court fails to provide a clear indication
of how it exercised its discretion, we will remand the fee
award for the court to provide an explanation.”) (citation
omitted); see also Camacho, 523 F.3d at 979 (concluding that
the district court erred by failing to explain “what was the
prevailing hourly rate in that community”). The district
court’s wholesale rejection of the relevant attorney
declarations submitted by Holcomb, and the court’s singular
reliance on the hourly rates previously awarded to Holcomb
and Beck in unrelated cases departed from the correct legal
standard and constituted legal error, resulting in an abuse of
discretion. See McCown v. City of Fontana, 565 F.3d 1097,
1101 (9th Cir. 2009), as amended (“A trial court abuses its
discretion if its fee award is based on an inaccurate view of
the law. . .”) (citation omitted). That there was some variance
in the declarations did not invalidate them. Rather, in the
absence of countervailing evidence from the City, the
declarations stood unrefuted. See Camacho, 523 F.3d at 980
(“The party opposing the fee application has a burden of
rebuttal that requires submission of evidence to the district
court challenging the accuracy” of the submitted affidavits.)
(citation omitted); see also Chaudry v. City of Los Angeles,
751 F.3d 1086, 1111 (9th. Cir. 2014) (noting that the
affidavits submitted by counsel provided “billing rates at
numerous Los Angeles law firms”). Consequently, as in
Camacho, we remand specifically for the district court to
apply the correct legal standard by determining the prevailing
hourly rate in the District of Hawaii for comparable work
performed by attorneys of similar “skill, experience and
reputation.” 523 F.3d at 980–81.
2. Unfiled Motions
Roberts contends that the district court erred when it
failed to award attorney’s fees for time spent on the Unfiled
Motions after November 25, 2015. The City responds that
Holcomb spent time unnecessarily churning hours, especially
after the parties had agreed in principle to settle the lawsuit.
The district court found that as of November 25, 2015, the
parties had reached a preliminary settlement agreement,
except on the amount of attorney’s fees. Therefore, the
district court ruled that hours spent working on the Unfiled
Motions after November 25, 2015, were “unreasonable”
because they did not “advance the litigation.”
In civil rights actions such as this, the Supreme Court has
held that plaintiff’s counsel “should recover a fully
compensatory fee” for “excellent results.” Hensley, 461 U.S.
at 435. The amount of fees awarded should correlate to the
hours “reasonably expended on the litigation.” Id. at 433.
By November 25, 2015, the City had indicated that it was
open to settlement discussions, but by no means had the
parties reached a formal agreement. At this point, Holcomb
had already drafted portions of the Unfiled Motions. By
December 4, 2015, the parties had agreed in principle to a
settlement. On December 7, 2015, and December 18, 2015,
the parties exchanged proposed settlement agreements.
However, the settlement agreement was not signed until
January 21, 2016.
As noted by the Supreme Court in Hensley, attorney’s
fees should “encompass all hours reasonably expended on the
litigation,” that is, work completed by attorneys to advance
the litigation of the case. See Hensley, 461 U.S. at 435.
As attorneys know, settlement discussions sometimes
result in settlement and sometimes do not. And “settlements
in principle” and draft settlement agreements often result in
final settlements but sometimes fall through. With these
realities in mind, it is a close question whether there was
sufficient likelihood of a successful final settlement during
the period after November 25 when Holcomb continued to
work on the Unfiled Motions. On remand, the district court
should consider in light of the entire record whether a
reasonable attorney with his client’s interests in mind would
have continued working on the Unfiled Motions after
November 25 and, if so, until when. See Moreno, 534 F.3d
at 1111 (explaining that the number of compensated hours is
determined “in light of the circumstances”).
For purposes of establishing the lodestar figure in an
attorney’s fees case, district courts must first determine a
reasonable hourly rate, which is adduced by examining rates
for comparable work performed by attorneys in the relevant
community with similar skill, experience, and reputation.
The district court failed to apply this standard to determine
the prevailing hourly rate in the relevant community. We
remand for the district court to do so. Additionally, we
remand for the district court to determine in accord with the
standard we have articulated whether the settlement
agreement was sufficiently final when work continued on the
Unfiled Motions after November 25.

Outcome: VACATED and REMANDED for further proceedings
consistent with this opinion.

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