Federal Court of Appeals Neither Adopts a “Shocks the Conscience” Test Nor Endorses a “Block Billing Entries Denial” Fee Recovery Standard in Civil Rights Cases.
In Mendez v. County of San Bernardino, Case Nos. 05-56118, 06-56424, & 07-56029 (9th Cir. Aug. 27, 2008), Mendez and family members prevailed upon and lost some aspects of a civil rights lawsuit arising from the aftermath of an officer-involved shooting that killed Mendez’s deaf-mute son Ignacio in July 2002. The shooting itself was not challenged, but the aftermath—an alleged false arrest and illegal search of the Mendez home in the wake of the shooting. After some claims were dismissed or thrown out on summary judgment, a jury returned with a verdict awarding Mendez $1 each in nominal damages on the false arrest/illegal search claims plus $250,000 in punitive damages against an interrogating police officer. (Later, the district court reduced the punitive damages to $5,000, a remittur affirmed by the Ninth Circuit.) Because 42 U.S.C. sec. 1988 authorizes the district court to award reasonable attorney’s fees to a prevailing party in a civil rights action, Mendez moved for such an award. The district court acknowledged Mendez was a prevailing party but denied her request outright on the basis that it was “so excessive that [it] warrant[s] a denial of fees altogether.” Mendez appealed the fee denial, a challenge that the Ninth Circuit found meritorious upon review.
Mendez moved for $727,558 in fees based on 2,570 hours of work, attaching substantial documentation in which partner/associates/paralegals’ hourly rates ranged from $250-550, in which partner/associates agreed to discount hours by 10% for any duplication, and in which paralegals agreed to a 20% hour cut for duplication. County’s opposition contended the hours should only be 1,999, partner/associates’ hourly rates should range from $150-300, and $97,556 was a fair fee (taking $390,225 as the lodestar and reducing it 75% based on plaintiffs’ limited success). In reply, Mendez’s attorneys agreed to cut some more hours, but then added in some additional hours for fee petition preparation–presenting a final claim of $727,308 in fees (as well as $65,000 in costs).
The district court expressed horror at what he believed to be an excessive request, denying the fee/costs requests altogether.
In overturning the denials, the Ninth Circuit—in a 3-0 opinion authored by Circuit Judge Fisher—rejected the notion that “special circumstances” existed to deny fees outright. After noting that the Ninth Circuit had never denied a section 1988 request solely because it “shocked the conscience,” it found that the decisions doing so involved very different facts such as slam dunk merits litigation justifying meager fees or a $750 hourly rate request by a one year experienced solo practitioner. Rather than an outright denial, the preferable route was for the district judge to reduce an award to a plaintiff who achieved only partial or limited success.
The district court had also justified denial based on block billing by Mendez’s counsel, a topic we have discussed in the past. (See our June 20 & 23, 2008 posts and August 13, 2008 post on Christian Research Inst. opinion.) However, based on Chief Judge Kozinski’s recent Moreno opinion (discussed in our August 2, 2008 post), the federal appeals panel found that, generally speaking, “the use of block billing does not justify an across-the-board rejection or rejection of all hours.”
For guidance on remand, the Ninth Circuit directed the district court to determine the lodestar, using the 12 factors set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975). From that, adjustments could then be made for such considerations as a reasonable hourly rate, unnecessary duplication (rather than just duplication), and the extent of Mendez’s success. The fee denial was vacated for a new determination by the district court.