FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRUSTEES OF THE CONSTRUCTION
INDUSTRY AND LABORERS
HEALTH AND WELFARE TRUST;
TRUSTEES OF THE CONSTRUCTION
INDUSTRY AND LABORERS JOINT
PENSION TRUST; TRUSTEES OF THE
CONSTRUCTION INDUSTRY AND
LABORERS VACATION TRUST;
TRUSTEES FOR THE SOUTHERN
NEVADA LABORERS LOCAL 872
TRAINING TRUST,
Plaintiffs-Appellants,
v.
No. 04-16380
REDLAND INSURANCE COMPANY;
LAKE MEAD CONSTRUCTORS, a joint
venture between Kiewit Western
D.C. No.
CV-02-00877-RLH
Co., a Delaware corporation, and OPINION
Gilbert Western Corp.; AMERICAN
MOTORISTS INSURANCE COMPANY,
Defendants-Appellees,
v.
SUMMIT LANDSCAPE COMPANIES,
INC., a California corporation;
SOUTH SHORES RESIDENTIAL AND
COMMERCIAL DEVELOPMENT CORP., a
California corporation,
Defendants-Third-Party-
Plaintiffs-Appellees,
v.
10497
10498 TRUSTEES OF THE CONSTR. IND. v. SUMMIT LANDSCAPE
LABORERS INTERNATIONAL UNION OF
NORTH AMERICA LOCAL 872; JOSE
JUAN CRUZ; HERBIBERTO MARIN
GARCIA; ARTURO P. GONZALES;
JESUS C. GONZALES; RAUL
GUTIERREZ, JR.; JOSE LUIS
JAUREGUI-R; DERON C. JOHNSON;
DIAZ EDGAR LOPEZ; PEDRO
MARTINEZ-DIAZ; ORTHON MEDINA;
SERGIO ROBLES-CABANILLA; JOSE
RUIZ-MEDINA; IGNACIO MEDINA
RUIZ; MANUEL QUINTERO; PABLO
CARDENAS-MANZANO ARMANDO
CASTRO; ALEJANDRO CORONA; SEAN
FOWLER; VICTOR GILLEN; ADAM
JACOME; ALVARO JACOME; MARIS
LINARES-BALANOS,
Third-Party-Defendants-
Appellees.
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, District Judge, Presiding
Argued and Submitted
March 16, 2006—San Francisco, California
Filed August 30, 2006
Before: Pamela Ann Rymer, William A. Fletcher, and
Richard R. Clifton, Circuit Judges.
Opinion by Judge William A. Fletcher
10500 TRUSTEES OF THE CONSTR. IND. v. SUMMIT LANDSCAPE
COUNSEL
Adam P. Segal and Michael A. Kristof, Schreck Brignone
Godfrey, Las Vegas, Nevada, for the appellants.
TRUSTEES OF THE CONSTR. IND. v. SUMMIT LANDSCAPE 10501
Gregory E. Smith, Smith & Kotchka, Las Vegas, Nevada;
Thanh Nguyen, the Rodarti Group, Aliso, Viejo, California;
Eric A. Stovall, Reno, Nevada; Jonathan E. Van Cleave,
Irvine, California, and John P. Carpenter, Lake Mead Con-
structors, Omaha, Nebraska, for the appellees.
Joseph A. Cardella & Thanh Nguyen, the Rodarti Group,
Aliso Viejo, California, and Brent Carson, Winner & Carson,
Las Vegas, Nevada, for the third-party plaintiffs-appellees.
Gregory E. Smith, Smith & Kotchka, Las Vegas, Nevada, and
Jonathan E. Van Cleave, Irvine, California, for the third-party
defendants-appellees.
OPINION
W. FLETCHER, Circuit Judge:
Plaintiffs/Appellants (“the Joint Trustees”) prevailed in an
action to collect delinquent benefit contributions owed to
trusts established under the Employee Retirement Income
Security Act (“ERISA”). The Joint Trustees then sought an
award of “reasonable attorney’s fees and costs of the action”
under ERISA pursuant to 29 U.S.C. § 1132(g)(2)(D). The dis-
trict court granted some of the requested fees, but it refused
to allow any recovery for work performed by non-attorneys
such as law clerks and paralegals. It also refused to allow any
recovery for expenses incurred in the course of the litigation.
The Joint Trustees appeal the district court’s refusal to award
these fees. We reverse and remand.
I. Background
On February 12, 2004, the district court granted the Joint
Trustees’ motion for summary judgment under 29 U.S.C.
§ 1145 for unpaid benefit contributions on behalf of non-
10502 TRUSTEES OF THE CONSTR. IND. v. SUMMIT LANDSCAPE
union employees. Because the Joint Trustees had prevailed on
the merits of their claim, the court held that they were entitled
to “reasonable attorney’s fees and costs” under 29 U.S.C.
§ 1132(g)(2)(D).
The Joint Trustees initially requested attorney’s fees and
costs totaling $51,907.04. However, the district court found
that the Joint Trustees had failed to provide “sufficient infor-
mation to determine whether the requested attorney’s fees and
costs are reasonable” under the twelve-factor test set forth in
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.
1975). The court therefore ordered the Joint Trustees to pro-
vide “an affidavit including this information, as well as any
additional information [they] deem germane to the Court’s
determination of reasonableness under the Kerr factors[.]”
The Joint Trustees submitted new affidavits in support of
their request for attorney’s fees and costs, now for a total
amount of $55,064.88.1 One affidavit specified that their fees
were calculated according to “normal billing rates,” as fol-
lows:
STAFF RATE
Partner $245.00
Associate $120.00 - 185.00
Law Clerk $110.00
Legal Assistant $70.00 - 100.00
Litigation Clerk $40.00
An additional affidavit specified the total number of hours
billed, the hourly rate for each employee, and a “brief summa-
tion” of the work performed. The additional affidavit also
specified litigation expenses, which it characterized as costs.
These expenses were charges for “electronic legal research,
1
In addition, the Joint Trustees sought attorney’s fees incurred after
briefing on the motion for summary judgment. The district court denied
this request. The Joint Trustees have not appealed this denial.
TRUSTEES OF THE CONSTR. IND. v. SUMMIT LANDSCAPE 10503
postage, photocopies, courier services, facsimile charges, long
distance phone charges, and court reporter services.”
The district court declined to award fees for any of the
work performed by non-attorneys. It wrote, “[T]he Court
finds that Plaintiffs’ attorney’s fees are unreasonable to the
extent that they include the billings of law clerks, paralegals,
and other non-attorneys, and accordingly reduces Plaintiff’s
attorney’s fees to $29,131, or that amount of service actually
performed by attorneys[.]” The court also declined to award
fees for any of the specified expenses.
The Joint Trustees appeal. For the reasons that follow, we
agree with the Joint Trustees.
II. Standard of Review
“This court reviews de novo any elements of legal analysis
and statutory interpretation involved in an attorney fees deci-
sion.” Associated Gen. Contractors v. Smith, 74 F.3d 926, 931
(9th Cir. 1996). Where ERISA has been correctly interpreted,
“[w]e review a district court’s award of mandatory attorneys’
fees pursuant to § 1132(g)(2)(D) according to the deferential,
clearly erroneous standard.” Parkhurst v. Armstrong Steel
Erectors, Inc., 901 F.2d 796, 799 (9th Cir. 1990); see also
Lads Trucking Co. v. Bd. of Trs. of the W. Conference of
Teamsters Pension Trust Fund, 777 F.2d 1371, 1373 (9th Cir.
1985).
III. Discussion
[1] ERISA provides for the mandatory award of attorney’s
fees to pension plans in successful actions to collect delin-
quent contributions owed under 29 U.S.C. § 1145. Lads
Trucking, 777 F.2d at 1373-74. In the words of the statute,
In any action under this subchapter by a fiduciary for
or on behalf of a plan to enforce section 1145 of this
10504 TRUSTEES OF THE CONSTR. IND. v. SUMMIT LANDSCAPE
title in which judgment in favor of the plan is
awarded, the court shall award the plan —
....
(D) reasonable attorney’s fees and costs of the
action, to be paid by the defendant . . .
29 U.S.C. § 1132(g)(2)(D).
A. Work Performed by Non-Attorneys
[2] As we construe its order, the district court ruled as a
matter of law under § 1132(g)(2)(D) that attorney’s fees are
not available to compensate for work performed by non-
attorneys such as law clerks and paralegals. The district court
erred in so ruling.
[3] In Missouri v. Jenkins, 491 U.S. 274 (1989), the
Supreme Court held that a “ ‘reasonable attorney’s fee’ pro-
vided for by statute should compensate the work of parale-
gals, as well as that of attorneys.” Id. at 285. The Court
reasoned,
Clearly, a “reasonable attorney’s fee” cannot have
been meant to compensate only work performed per-
sonally by members of the bar. Rather, the term must
refer to a reasonable fee for the work product of an
attorney. Thus, the fee must take into account the
work not only of attorneys, but also of secretaries,
messengers, librarians, janitors, and others whose
labor contributes to work product for which an attor-
ney bills her client; and it must also take account of
other expenses and profit.
Id. If the attorney’s hourly rate already incorporates the cost
of work performed by non-attorneys, then courts should not
compensate for these costs as an additional “reasonable attor-
TRUSTEES OF THE CONSTR. IND. v. SUMMIT LANDSCAPE 10505
ney’s fee.” The key, wrote the Court, is the billing custom in
the “relevant market.” Id. at 288. Thus, fees for work per-
formed by non-attorneys such as paralegals may be billed sep-
arately, at market rates, if this is “the prevailing practice in a
given community.” Id. at 287. Indeed, even purely clerical or
secretarial work is compensable if it is customary to bill such
work separately, id. at 287 n.9, though such tasks “should not
be billed at the paralegal rate, regardless of who performs
them.” Id. at 288 n.10. The principle established in Jenkins
harnesses “the discipline of the market” to ensure that attor-
neys recover only those costs that are not already built into
their hourly fees. Id. at 287 n.9.
[4] On remand, the district court may properly insist that
the Joint Trustees show that it is the custom in the relevant
community to bill separately for work performed by the non-
attorneys at issue, and that the Joint Trustees “produce[ ] sat-
isfactory evidence, in addition to the affidavits of [their] coun-
sel, that the requested rates are in line with those prevailing
in the community for similar services of lawyers of reason-
ably comparable skill and reputation.” Jordan v. Multnomah
County, 815 F.2d 1258, 1263 (9th Cir. 1987). The district
court should “provide a concise but clear explanation of its
reasons for the fee award.” Hensley v. Eckerhart, 461 U.S.
424, 437 (1983); see also D’Emanuele v. Montgomery Ward
& Co., 904 F.2d 1379, 1384-86 (9th Cir. 1990) (discussing
the requirements for a “concise but clear explanation”).
B. Expenses
The Joint Trustees contend that their specified expenses,
which they have characterized as costs in their affidavit, are
part of “reasonable attorney’s fees” under § 1132(g)(2)(D). It
is well established that attorney’s fees under 42 U.S.C. § 1988
include reasonable 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.
10506 TRUSTEES OF THE CONSTR. IND. v. SUMMIT LANDSCAPE
§ 1920.2 See, e.g., Harris v. Marhoefer, 24 F.3d 16, 19-20 (9th
Cir. 1994); Davis v. Mason County, 927 F.2d 1473, 1488 (9th
Cir. 1991); United Steelworkers of Am. v. Phelps Dodge
Corp., 896 F.2d 403, 407 (9th Cir. 1990); Chalmers v. City of
Los Angeles, 796 F.2d 1205, 1216 n.7 (9th Cir. 1986), reh’g
denied and opinion amended, 808 F.2d 1373 (9th Cir. 1987).
Lower courts in this circuit have, 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. See, e.g., Griffeth v. Sheet Metal
Workers’ Local Unions & Councils Pension Plan, 34 F. Supp.
2d 1170, 1176 (D. Ariz. 1998) (29 U.S.C. § 1132(g)(1));
Aloha Tower Assocs. Piers 7, 8 & 9, Ltd. P’ship v. Millen-
nium Aloha, Inc., 938 F. Supp. 646, 650 (D. Haw. 1996) (28
U.S.C. § 1447(c)); Snell v. Reno Hilton Resort, 930 F. Supp.
1428, 1434 (D. Nev. 1996) (42 U.S.C. § 2000e-5(g)(2)(B)).
As in Griffeth, district courts outside this circuit have held
that although not all “reasonable out-of-pocket expenses of
the kind normally charged to clients by attorneys” come
within § 1920, “those expenses may in fact be recoverable as
part of their reasonable attorney’s fees” under ERISA.
Emmenegger v. Bull Moose Tube Co., 33 F. Supp. 2d 1127,
2
28 U.S.C. § 1920 provides:
A judge or clerk of any court of the United States may tax as
costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part of the steno-
graphic transcript necessarily obtained for use in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and copies of papers necessarily
obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation
of interpreters, and salaries, fees, expenses, and costs of spe-
cial interpretation services under section 1828 of this title.
TRUSTEES OF THE CONSTR. IND. v. SUMMIT LANDSCAPE 10507
1133 (E.D. Mo. 1998) (§ 1132(g)(1)); see also Antolik v. Saks
Inc., 407 F. Supp. 2d 1064, 1079 (S.D. Iowa 2006)
(§ 1132(g)(1)); King v. JCS Enters., Inc., 325 F. Supp. 2d
162, 171 (E.D.N.Y. 2004) (§ 1132(g)(2)(D)). But see Perlman
v. Swiss Bank Corp. Comprehensive Disability Protection
Plan, 990 F. Supp. 1039, 1044 (N.D. Ill. 1998) (§ 1132(g)(1)),
vacated by 195 F.3d 975 (7th Cir. 1999).
[5] The Supreme Court has provided two guidelines
addressing the scope of attorney’s fees as applied to litigation
expenses. First, “reasonable attorney’s fees” do not include
costs that, like expert fees, have by tradition and statute been
treated as a category of expenses distinct from attorney’s fees.
See W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 99-100
(1991). Second, “reasonable attorney’s fees” include litigation
expenses only when it is “the prevailing practice in a given
community” for lawyers to bill those costs separately from
their hourly rates. See Jenkins, 491 U.S. at 286-87.
We note that there is a circuit split concerning whether
expenses for computer-based legal research are compensable
as “reasonable attorney’s fees.” The Eighth Circuit has held
that “computer-based legal research must be factored into the
attorneys’ hourly rate, hence the cost of the computer time
may not be added to the fee award.” Standley v. Chilhowee R-
IV Sch. Dist., 5 F.3d 319, 325 (8th Cir. 1993). No other circuit
has endorsed this view, and many have expressly held that
computerized research costs can, in appropriate circum-
stances, be recovered in addition to the hourly rates of attor-
neys. See, e.g., Arbor Hill Concerned Citizens Neighborhood
Ass’n v. County of Albany, 369 F.3d 91, 98 (2d Cir. 2004) (“If
[the firm] normally bills its paying clients for the cost of
online research services, that expense should be included in
the fee award.”); InvesSys, Inc. v. Mc-Graw-Hill Cos., 369
F.3d 16, 22 (1st Cir. 2004) (“[C]omputer-assisted research
should be . . . reimbursed under attorney’s fee statutes . . . so
long as the research cost is in fact paid by the firm to a third-
party provider and is customarily charged by the firm to its
10508 TRUSTEES OF THE CONSTR. IND. v. SUMMIT LANDSCAPE
clients as a separate disbursement.”); Case v. Unified Sch.
Dist. No. 233, 157 F.3d 1243, 1257-58 (10th Cir. 1998)
(“Reasonable expenses incurred in representing a client in a
civil rights case [such as Westlaw charges] should be included
in the attorney’s fee award if such expenses are usually billed
in addition to the attorney’s hourly rate.”); see also Role Mod-
els Am., Inc. v. Brownlee, 353 F.3d 962, 975 (D.C. Cir. 2004).
[6] We believe that the growing circuit consensus reflects
the Supreme Court’s treatment of litigation expenses under
attorney’s fee statutes. Neither tradition nor statutory usage
distinguishes computer-based legal research costs from attor-
ney’s fees. Cf. W. Va. Univ. Hosps., 499 U.S. at 99-100. We
therefore hold 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.” Jenkins, 491 U.S.
at 287 n.9.
Conclusion
If fees for work performed by non-attorneys are customar-
ily billed separately in the relevant market, those fees are
recoverable as “reasonable attorney’s fees” under 29 U.S.C.
§ 1132(g)(2)(D). Similarly, if the expenses specified by the
Joint Trustees in this case are customarily billed separately,
they are recoverable as “reasonable attorney’s fees” under the
same section. We therefore reverse the judgment of the dis-
trict court and remand for further proceedings consistent with
this opinion.
REVERSED and REMANDED.