FILED
NOT FOR PUBLICATION
NOV 25 2013
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSICA A. MARQUEZ, No. 12-35621
Plaintiff - Appellant, D.C. No. 2:09-cv-01254-SU
v.
MEMORANDUM *
HARPER SCHOOL DISTRICT NO. 66;
et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Patricia Sullivan, Magistrate Judge, Presiding
Argued and Submitted November 7, 2013
Portland, Oregon
Before: M. SMITH and HURWITZ, Circuit Judges, and PRO, Senior District
Judge.**
Plaintiff-Appellant Jessica Marquez appeals the district court’s denial of her
supplemental motion for attorney’s fees. Marquez also appeals the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Philip M. Pro, United States District Judge for the
District of Nevada, sitting by designation.
calculation of the attorney’s fee award based on her original motion for attorney’s
fees. We review for an abuse of discretion. Mendez v. Cnty. of San Bernardino,
540 F.3d 1109, 1124 (9th Cir. 2008). We affirm in part, reverse in part, and
remand.
The district court did not abuse its discretion in denying the supplemental
fee motion because the Offer of Judgment unambiguously limited fees to those
accrued through the date of the Offer. Guerrero v. Cummings, 70 F.3d 1111,
1113–14 (9th Cir. 1995). As to the original fee motion, the district court did not
abuse its discretion with respect to deductions for block billing because the district
court did not make across the board cuts to all fees on this basis. See Welch v.
Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007); Fischer v. SJB-P.D. Inc.,
214 F.3d 1115, 1118, 1121 (9th Cir. 2000). Rather, the district court was within its
discretion when it deleted two block billed entries in their entirety and deleted
hours for clerical tasks and vague time entries in the billing records. The district
court did not abuse its discretion by awarding rates lower than the highest
comparable billing rates. The district court awarded rates above the average billing
rate for attorneys of similar experience. Finally, the district court did not abuse its
discretion by failing to make an adjustment for the protracted nature of the
post-offer litigation.
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However, the district court abused its discretion in setting the reasonable
hourly rate and reasonable hours expended because it double counted the case’s
lack of complexity combined with counsels’ expertise to reduce both the rate and
the hours. See Moreno v. City of Sacramento, 534 F.3d 1106, 1115-16 (9th Cir.
2008). The district court failed to adequately explain why it did not apply any
enhancement to the hourly rate for inflation or a delay in payment. Christensen v.
Stevedoring Servs. of Am., 557 F.3d 1049, 1055–56 (9th Cir. 2009). The district
court’s lack of explanation, combined with its reference to the requested fee rates
as “enhanced,” suggest the district court may be “holding the line” by using the
2007 Oregon State Bar Survey to artificially limit rates to 2006 levels. Moreno,
534 F.3d at 1115; see also Davis v. Wal-Mart Stores, Inc., No.
3:09-CV-01488-MO, 2012 WL 1424105, at *2-3 (D. Or. Apr. 23, 2012)
(unpublished) (calculating a fee award using the 2007 Oregon State Bar Survey as
a baseline, but adjusting for inflation for each year of work performed beyond
2006 and explaining the basis for those adjustments).
Further, the district court did not explain why it applied thirty and fifty
percent reductions to the hours expended briefing the summary judgment motions
and researching the complaint. The district court may impose a “small reduction,
no greater than 10 percent—a ‘haircut’—based on its exercise of discretion and
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without a more specific explanation.” Moreno, 534 F.3d at 1112. “In all other
cases, however, the district court must explain why it chose to cut the number of
hours or the lodestar by the specific percentage it did.” Gonzalez v. City of
Maywood, 729 F.3d 1196, 1203 (9th Cir. 2013). Stating that the case is not novel
or complex does not suffice to explain the “magnitude of the reductions.” Costa v.
Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136-37 (9th Cir. 2012). We
therefore affirm in part, reverse in part, and remand for further proceedings
consistent with this decision.
Each party shall bear its own costs.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
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