FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH H. GROVE,
Plaintiff-Appellant, No. 08-56964
v. D.C. No.
WELLS FARGO FINANCIAL 2:07-cv-07475-PA-
CALIFORNIA, INC., a Colorado JWJ
corporation, OPINION
Defendant-Appellee.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted
March 4, 2010—Pasadena, California
Filed May 20, 2010
Before: Pamela Ann Rymer, Kim McLane Wardlaw and
N. Randy Smith, Circuit Judges.
Opinion by Judge Wardlaw;
Partial Concurrence and Partial Dissent by Judge Rymer
7235
7238 GROVE v. WELLS FARGO FINANCIAL
COUNSEL
Robert S. Green, Jenelle Welling, and Charles D. Marshall of
Green Welling, P.C., San Francisco, California, for the appel-
lant.
Jan T. Chilton, Mark D. Lonergan, and Jon D. Ives of Sever-
son & Werson, San Francisco, California, for the appellee.
OPINION
WARDLAW, Circuit Judge:
Kenneth Grove appeals the district court’s award of attor-
ney’s fees and costs following the settlement of his Fair
Credit Reporting Act (“FCRA”) action against Wells Fargo
Financial California, Inc. (“Wells Fargo”). The principle issue
before us is whether the expense-shifting provision in the
FCRA authorizes district courts to award costs that otherwise
would be non-taxable under 28 U.S.C. § 1920, which gener-
ally authorizes the award of certain specified costs. Because
we conclude that it does, we reverse the district court on this
issue, but affirm on Grove’s other claims of error.
FACTUAL AND PROCEDURAL BACKGROUND
In spring 2006, Wells Fargo notified various credit report-
ing agencies that Grove was delinquent on an automobile
loan. Grove disputed that he was behind in his payments and
sent letters to Wells Fargo requesting that it submit corrected
information to the credit reporting agencies. Grove filed a
lawsuit under the FCRA when Wells Fargo refused to correct
the information it had provided the agencies. A court-ordered
mediation session did not result in a settlement, and the par-
ties proceeded with discovery, including depositions and doc-
ument production.
GROVE v. WELLS FARGO FINANCIAL 7239
On the eve of trial, the parties reached a settlement. Pursu-
ant to Federal Rule of Civil Procedure 68, the district court
entered the parties’ stipulated judgment, which provided that
Wells Fargo would submit a written request to the credit
reporting agencies to delete the disputed information in
Grove’s credit report. It also provided that Wells Fargo would
pay Grove $20,000 “plus costs incurred to date and recover-
able attorney’s fees.” The judgment concluded that Grove was
the prevailing party and that he was entitled to “recover his
reasonable attorney’s fees and costs in this action by filing a
motion with the Court and that [Wells Fargo] may contest the
amount of the fees and costs to be awarded, but not Plaintiff’s
entitlement to the same.”
Pursuant to the Rule 68 judgment, Grove filed a motion in
which he requested $154,578 in attorney’s fees and $7,468.41
in costs listed as taxable under 28 U.S.C. § 1920. The district
court awarded Grove $85,289.25 in attorney’s fees and denied
Grove’s request for taxable costs. Grove also requested
$6,770.60 in non-taxable costs, including the cost of postage,
facsimiles, travel, mediation services, and video conferencing
services used in depositions. In opposition, Wells Fargo
argued that Grove was not entitled to recover any costs that
were not listed as taxable under 28 U.S.C. § 1920. The district
court agreed with Wells Fargo, concluded that it lacked dis-
cretion to award non-taxable costs, and denied Grove’s
request. Grove appeals.
DISCUSSION
I. Non-Taxable Costs
[1] “Under the ‘American rule,’ litigants ordinarily are
required to bear the expenses of their litigation unless a statute
or private agreement provides otherwise.” Carbonell v. INS,
429 F.3d 894, 897-98 (9th Cir. 2005). At issue in Grove’s
request for non-taxable costs are two of many statutory excep-
tions to the American Rule and whether the first trumps the
7240 GROVE v. WELLS FARGO FINANCIAL
second. Pursuant to the first, 28 U.S.C. § 1920, a “judge or
clerk of any Court of the United States may tax as costs” cer-
tain expenses: fees of the clerk and marshal; certain fees for
transcripts; certain fees for printing and witnesses; the costs
of copies needed for use in the case; docketing fees; and com-
pensation of court appointed experts and interpreters. These
expenses — known as “taxable costs” — may be recovered
by the prevailing party. Section 1920 “define[s] the full extent
of a federal court’s power to shift litigation costs absent
express statutory authority.” W. Va. Univ. Hosps., Inc. v.
Casey, 499 U.S. 83, 86 (1991); see also Crawford Fitting Co.
v. J.T. Gibbons, Inc., 482 U.S. 437, 440 (1987) (Section 1920
“embodies Congress’ considered choice as to the kinds of
expenses that a federal court may tax as costs against the los-
ing party.”). The second expense-shifting provision at issue
here is set forth in the FCRA. It permits a prevailing plaintiff
to recover “the costs of the action together with reasonable
attorney’s fees as determined by the court.” 15 U.S.C.
§ 1681o(a)(2); id. § 1681n(a)(3).
In considering whether the FCRA’s expense-shifting provi-
sion authorizes district courts to award non-taxable costs to
prevailing plaintiffs in FCRA cases, we must “carefully
inspect [the expense-shifting provision] for clear evidence of
congressional intent that non-taxable costs should be avail-
able.” Twentieth Century Fox Film Corp. v. Entm’t Distrib.,
429 F.3d 869, 885 (9th Cir. 2005) (discussing Crawford Fit-
ting Co., 482 U.S. at 437). Were we interpreting the language
of the FCRA in the first instance, without the benefit of con-
trolling case law on point, we might or might not conclude
that it satisfies the Crawford Fitting test. However, as dis-
cussed in detail below, we — and the Supreme Court — have
long interpreted the phrase “reasonable attorney’s fees” to
include certain litigation expenses, and we are bound to fol-
low that precedent here. See, e.g., Valdivia v. Schwarzeneg-
ger, 599 F.3d 984, 990 n.4 (9th Cir. 2010) (“[A]s a three-
judge panel, and with no intervening Supreme Court or Ninth
Circuit precedent, we are bound by this court’s [previous]
GROVE v. WELLS FARGO FINANCIAL 7241
holding.”); United States v. Vasquez-Ramos, 531 F.3d 987,
991 (9th Cir. 2008) (“We are bound by circuit precedent
unless there has been a substantial change in relevant circum-
stances . . . or a subsequent en banc or Supreme Court deci-
sion that is clearly irreconcilable with our prior holding.”
(internal citations omitted)). Therefore, because the FCRA
provides for “reasonable attorney’s fees,” we conclude that
district courts have discretion to award non-taxable costs to
prevailing parties under the FCRA and that the district court
erred in concluding otherwise. See Oscar v. Alaska Dep’t of
Educ. & Early Dev., 541 F.3d 978, 981 (9th Cir. 2008) (de
novo review of legal analysis relevant to fee determination).
[2] In Missouri v. Jenkins, 491 U.S. 274 (1989), the
Supreme Court held that a prevailing plaintiff could recover
the costs of paralegals’ time under a statute allowing for “a
reasonable attorney’s fee as part of the costs.” Id. at 285
(quoting 42 U.S.C. § 1988). The Jenkins Court explained that
“the fee must take into account the work not only of attorneys,
but . . . it must also take account of other expenses and prof-
it.” Id. We have interpreted Jenkins to mean that “ ‘reasonable
attorney’s fees’ include litigation expenses . . . when it is ‘the
prevailing practice in a given community’ for lawyers to bill
those costs separate from their hourly rates.” Trs. of the Con-
str. Indus. and Laborers Health and Welfare Trust v. Redland
Ins. Co., 460 F.3d 1253, 1258 (9th Cir. 2006). Thus, “we have
continued to hold that attorneys’ fees awards can include
reimbursement for out-of-pocket expenses including . . .
travel, courier and copying costs.” Davis v. City of San Fran-
cisco, 976 F.2d 1536, 1556 (9th Cir. 1992), vacated in part on
other grounds, 984 F.2d 345.
[3] Consistent with Jenkins, we repeatedly have allowed
prevailing plaintiffs to recover non-taxable costs where stat-
utes authorize attorney’s fees awards to prevailing parties. In
Davis v. San Francisco, we affirmed an award of non-taxable
costs under an expense-shifting statute providing that “the
court, in its discretion, may allow the prevailing party . . . a
7242 GROVE v. WELLS FARGO FINANCIAL
reasonable attorney’s fee.” Id. at 1541 (quoting 42 U.S.C.
§ 2000e-5(k)). In doing so, we noted that, “the courts have
long held [that certain non-taxable costs] can be awarded as
part of a reasonable attorneys’ fee since they are typically
charged to paying clients by private attorneys.” Id. at 1556.
Similarly, in Davis v. Mason County, 927 F.2d 1473 (9th Cir.
1991), we affirmed an award of travel expenses under a stat-
ute providing district courts with discretion to allow the pre-
vailing party reasonable attorney’s fees as part of the costs of
the action. Id. at 1488; 42 U.S.C. § 1988. We rejected the
defendant’s argument that costs should be limited to those
available under § 1920, explaining that the defendant “fails to
see that . . . travel expenses were not granted as costs under
section 1920, but rather as out-of-pocket expenses, compensa-
ble under section 1988.” Davis v. Mason County, 927 F.2d at
1488. We further observed that “[c]ourts have generally held
that expenses incurred during the course of litigation which
are normally billed to fee-paying clients should be taxed
under section 1988.” Id.; see also Chalmers v. City of Los
Angeles, 796 F.2d 1205, 1216 n.7 (9th Cir. 1986) (“Even
though not normally taxable as costs, out-of-pocket expenses
incurred by an attorney which would normally be charged to
a fee paying client are recoverable as attorney’s fees under
section 1988.”).
More recently, in Redland Insurance, we addressed
whether computerized research costs were recoverable under
ERISA’s expense-shifting provision, which, like the FCRA’s
expense-shifting provision, authorizes the recovery of “rea-
sonable attorney’s fees and costs of the action.” Redland Ins.
Co., 460 F.3d at 1256 (quoting 29 U.S.C. § 1132(g)(2)(D)). In
considering the use of the term “attorney’s fees” in ERISA’s
fee shifting provision, we observed that “[i]t is well estab-
lished that attorney’s fees under 42 U.S.C. § 1988 include rea-
sonable out-of-pocket litigation expenses that would normally
be charged to a fee paying client, even if the court cannot tax
these expenses as ‘costs’ under 28 U.S.C. § 1920.” Id. at
1257. We also noted that “[l]ower courts in this circuit have,
GROVE v. WELLS FARGO FINANCIAL 7243
without comment, applied the interpretation of attorney’s fees
in § 1988 to other fee-shifting statutes in order to award
expenses that do not fall within the scope of § 1920.” Id. at
1257-58. Discussing the Court’s decisions in Casey and Jen-
kins, we endorsed this view, holding “that reasonable charges
for computerized research may be recovered as ‘attorney’s
fees’ under § 1132(g)(2)(D) if separate billing for such
expenses is ‘the prevailing practice in the local community.’ ”
Id. at 1258-59 (quoting Jenkins, 491 U.S. at 287); see also id.
at 1258 (discussing a “growing circuit consensus reflect[ing]
the Supreme Court’s treatment of litigation expenses under
attorney’s fee statutes”).
The other circuit courts that have examined this question
agree that expenses other than those expressly listed in § 1920
are recoverable under statutes providing for the recovery of
“attorney’s fees.” For instance, in Central Soya Company v.
Geo. A. Hormel & Co., 723 F.2d 1573 (Fed. Cir. 1983), the
Federal Circuit was called upon to determine whether certain
litigation expenses were available under a patent infringement
statute, which provided that “a court ‘in exceptional cases
may award reasonable attorney fees to the prevailing party.’ ”
Id. at 1577 (quoting 35 U.S.C. § 285). Upholding the district
court’s award of expenses, it reasoned, “We interpret attorney
fees to include those sums that the prevailing party incurs in
the preparation for and performance of legal services related
to the suit.” Id. at 1578; see also Bryant v. City of Chicago,
200 F.3d 1092, 1100 n.3 (7th Cir. 2000) (“Non-taxable costs
are recoverable as part of the attorney’s fees to be awarded”
under 42 U.S.C. § 2000e-5(k)); Save our Cumberland Moun-
tains, Inc. v. Hodel, 826 F.2d 43, 54 (D.C. Cir. 1987) (“We
believe that it would be unduly restrictive to find that neither
the general term ‘costs of litigation’ nor the term ‘attorney’s
fees’ includes incidental expenses of attorneys that are routine
to all litigation and routinely billed to private clients.”).
The district court offered two bases for its conclusion that
it lacked discretion to award non-taxable costs under the
7244 GROVE v. WELLS FARGO FINANCIAL
FCRA’s fee-shifting provision. First, the district court misin-
terpreted our opinion in Twentieth Century, in which we held
that non-taxable costs were recoverable under an expense-
shifting statute providing for “full costs.” See Twentieth Cen-
tury, 429 F.3d at 884 (interpreting 17 U.S.C. § 505). The dis-
trict court apparently reasoned that, because the FCRA does
not cover “full costs,” it does not cover non-taxable costs.
However, nothing in Twentieth Century suggests that Con-
gress must use the words “full costs” in a fee-shifting provi-
sion to authorize the recovery of non-taxable costs. Moreover,
in Twentieth Century, we did not specifically discuss the
meaning of the term “attorney’s fees.” Although we focused
solely on the term “full costs” to conclude that § 505 autho-
rized recovery of non-taxable costs, we did not foreclose the
analyses set forth in Redland Insurance, Davis v. San Fran-
cisco, Davis v. Mason County, and Chalmers leading to the
conclusion that the term “attorney’s fees” encompasses non-
taxable costs as well.
[4] Second, though Grove cited Davis v. San Francisco,
the district court rejected our analysis there because it “dealt
specifically with a Title VII employment action[, and] Title
VII has its own statute regarding attorneys’ fees and costs,
which is inapplicable here.” While it is true that Title VII and
the FCRA are different statutory schemes, it is also true that
both statutes contain an expense-shifting provision authoriz-
ing the recovery of “attorney’s fees.” The district court thus
incorrectly refused to follow our — and the Supreme Court’s
— interpretation of that phrase to include the recovery of
costs other than those taxable under § 1920. See, e.g., Jenkins,
491 U.S. at 285 (expense-shifting under § 1988); Redland Ins.
Co., 460 F.3d at 1256 (expense-shifting under ERISA); Davis
v. San Francisco, 976 F.2d at 1556-57 (expense-shifting
under Title VII); Davis v. Mason County, 927 F.2d at 1488
(expense-shifting under § 1988); see also Richlin Sec. Serv.
Co. v. Chertoff, 128 S. Ct. 2007, 2014 (2008) (applying the
Jenkins Court’s interpretation of “attorney’s fees” in § 1988
to the same term in 5 U.S.C. § 504(b)(1)(A)).
GROVE v. WELLS FARGO FINANCIAL 7245
II. Taxable Costs
[5] The district court denied Grove’s request for $7,468.41
in taxable costs because Grove failed to comply with the local
rules governing motions for taxable costs. See C.D. Cal. L. R.
54. “Only in rare cases will we question the exercise of dis-
cretion in connection with the application of local rules.”
United States v. Warren, 601 F.2d 471, 474 (9th Cir. 1979)
(per curiam). This is not one of those “rare cases.” Indeed,
Grove’s argument that the district court abused its discretion
by strictly enforcing the local rules is foreclosed by precedent.
See Lytle v. Carl, 382 F.3d 978, 989-90 (9th Cir. 2004)
(affirming district court’s decision to deny taxable costs
where the movant failed to file his bill of costs within the time
permitted by the local rules).
III. Attorney’s Fees
[6] “When it sets a fee, the district court must . . . deter-
mine the presumptive lodestar figure by multiplying the num-
ber of hours reasonably expended on the litigation by the
reasonable hourly rate.” Intel Corp. v. Terabyte Int’l, Inc., 6
F.3d 614, 622 (9th Cir. 1993). Here, the district court did not
abuse its discretion in calculating the lodestar value of the
attorney’s fees. See Hensley v. Eckerhart, 461 U.S. 424,
453-54 (1983) (standard of review); Oscar, 541 F.3d at
980-81 (same).
A. Hours Expended
[7] Grove requested attorney’s fees for approximately 480
hours of billable time, whereas Wells Fargo argued that only
about 175 hours were reasonably expended on the litigation.
The district court engaged in a thorough, line-by-line analysis
of Grove’s time sheets and determined that about 360 hours
were reasonably expended on the litigation. The district court
acted well within its discretion in reaching this conclusion.
See generally Chalmers, 796 F.2d at 1211 (“The district court
7246 GROVE v. WELLS FARGO FINANCIAL
is in the best position to determine in the first instance the
number of hours reasonably expended in furtherance of the
successful aspects of a litigation and the amount which would
reasonably compensate the attorney.”).
B. Hourly Rates
[8] Grove failed “to produce satisfactory evidence — in
addition to the attorney’s own affidavits — that [his]
requested [hourly] rates [were] in line with those prevailing in
the community for similar services by lawyers of reasonably
comparable skill, experience and reputation.” Blum v. Sten-
son, 465 U.S. 886, 896 n.11 (1984); see also Van Skike v.
Dir., Office of Workers’ Comp. Programs, 557 F.3d 1041,
1046 (9th Cir. 2009). Given Grove’s failure to meet this bur-
den, the district court acted within its discretion when it
adopted Wells Fargo’s suggested hourly rates and rejected
Grove’s.
CONCLUSION
[9] We affirm the district court’s award of attorney’s fees
and its rejection of Grove’s claim for taxable costs pursuant
to § 1920. However, because the district court is authorized to
award non-taxable costs as part of the attorney’s fee award,
we reverse the rejection of Grove’s claim for non-taxable
costs and remand for the district court to consider Grove’s
claim for $6,770.60 in non-taxable costs. In considering
Grove’s request for non-taxable costs, the district court must
apply Jenkins, as interpreted in Redland Insurance, and deter-
mine whether it is the prevailing practice in the given commu-
nity for lawyers to bill those costs separate from their hourly
rates. AFFIRMED in part; REVERSED in part; and
REMANDED.
GROVE v. WELLS FARGO FINANCIAL 7247
RYMER, Circuit Judge, concurring in part and dissenting in
part:
Although I concur in Parts II and III of the opinion regard-
ing taxable costs and attorney’s fees, I part company on Part
I regarding non-taxable costs because I believe our cases
(understandably followed by the majority) have gone off track
by relying on precedent to conclude that non-taxable costs
may be awarded as attorney’s fees whenever a fee-shifting
statute allowing recovery of “attorney’s fees” is invoked.
Instead, I think we are obliged to determine in the instance of
each statute individually whether Congress clearly intended to
go beyond 28 U.S.C. § 1920, the statute that lists what costs
are taxable, and in the instance of each case, to determine
whether the practice in the community is for attorneys to
charge particular non-taxable costs to their clients.
The Supreme Court has made clear that there must be
“plain evidence of congressional intent to supersede” the limi-
tations explicitly set out in § 1920. Crawford Fitting Co. v.
J.T. Gibbons, Inc., 482 U.S. 437, 445 (1987). Given this rule,
I don’t believe it is enough just to rely on how we have inter-
preted “reasonable attorney’s fees” in other fee-shifting stat-
utes. Rather, we should do so anew whenever we consider a
fee-shifting statute for the first time. That’s what we did, for
example, in Twentieth Century Fox Film Corp. v. Entertain-
ment Distributing, 429 F.3d 869, 884-85 (9th Cir. 2005),
where we addressed an award of attorney’s fees and costs
under 18 U.S.C. § 505 and concluded that Congress did
clearly intend to make non-taxable costs available because
§ 505 allows the recovery of “full costs.” This is our first pass
at FRCA. Therefore, as I see it, we should determine whether
in the FRCA Congress manifested a clear intent to exceed the
limits in § 1920. Otherwise, we sidestep Crawford Fitting,
and effectively nullify § 1920 by rendering it inapplicable, on
a virtually automatic basis, to any statute that allows for
recovery of attorney’s fees regardless of what the underlying
congressional intent may be.
7248 GROVE v. WELLS FARGO FINANCIAL
But even under the approach we have been taking — rely-
ing on prior cases that involve different statutes — reasonable
attorney’s fees include non-taxable costs “only when it is the
prevailing practice in a given community for lawyers to bill
those costs separately from their hourly rates.” Trs. of the
Constr. Indus. & Laborers Health &Welfare Trust v. Redland
Ins. Co., 460 F.3d 1253, 1258 (9th Cir. 2006) (internal cita-
tions and quotation marks omitted). Grove provided no evi-
dence that it is the prevailing practice to bill the non-taxable
costs he seeks separately from hourly rates. I am not suggest-
ing that it is untoward, or uncustomary in the relevant market,
to do so, just that we seem to be sidestepping our own rule as
well.