Daniel Vargas v. Amber Howell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DANIEL VARGAS, No. 18-15513
Plaintiff-Appellant,
D.C. No.
v. 2:14-cv-01942-
JCM-CWH
AMBER HOWELL; STEVE MCBRIDE;
RICHARD GLOECKNER; JAMES
GOODSON; RUSSELL TAYLOR; GARY OPINION
PATTERSON; SHAUN BRILEY; JOHN
OLSON; DEBORAH KNOTTS,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding

Argued and Submitted July 8, 2019
Seattle, Washington

Filed February 5, 2020

Before: Paul J. Watford and Eric D. Miller, Circuit Judges,
and Roger T. Benitez, * District Judge.

*
The Honorable Roger T. Benitez, United States District Judge for
the Southern District of California, sitting by designation.
2 VARGAS V. HOWELL

Opinion by Judge Miller;
Dissent by Judge Benitez

SUMMARY **

Attorney’s Fees

The panel affirmed in part and reversed in part the
district court’s award of attorney’s fees following settlement
in an action brought pursuant to 42 U.S.C. § 1983, and
remanded.

The district court awarded just 10 percent of the
attorney’s’ fees claimed by plaintiff, concluding that “the
vast majority of hours expended in this case were
unreasonable.”

The panel held that the district court provided an
inadequate explanation for such a significant cut. The panel
stated that the district court appeared to have employed a
“mechanical” approach, simply assuming that because
plaintiff settled for 10 percent of what he sought, his lead
lawyer should recover only 10 percent of the requested fees.
The panel noted, among other things, that although the
$99,999 settlement was less than what plaintiff initially
sought, it was far more than a nuisance settlement.
Moreover, no ruling from the district court had significantly
weakened or limited plaintiff’s claims. The panel remanded
for a recalculation of the number of hours reasonably

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
 VARGAS V. HOWELL 3

attributable to plaintiff’s attorney, R. Todd Terry. The panel
further noted that the record did not suggest that this case
gave rise to any special non-monetary benefit that would
warrant consideration in determining an appropriate fee
award.

The panel held that the district court erred by denying
fees for work performed by two former attorneys on the basis
that their new law firm lacked standing to seek fees for work
the attorneys performed at a different firm. The panel stated
that 42 U.S.C. § 1988 vests the right to seek attorney’s fees
in the prevailing party, not the attorney. Plaintiff—not his
attorneys—moved for attorney’s fees and costs, and plaintiff
unquestionably had standing to seek fees, including for the
work of attorneys who represented him for more than nine
months.

The panel found no abuse of discretion in the district
court’s reduction of hours and rates of the other attorneys
that worked on the case. The panel stated that had it been
called upon to determine a reasonable fee in the first
instance, the panel’s calculation might have differed from
that of the district court, but that did not mean that the district
court abused its discretion.

Dissenting from the majority’s conclusion in Part II that
the district court’s approach was mechanical and its
explanation inadequate, Judge Benitez stated that he had no
difficulty understanding why the district court made the fee
award it did and he was confident that it was the result of
reasonable and experienced discretion.
4 VARGAS V. HOWELL

COUNSEL

Kendelee L. Works (argued), Christiansen Law Offices, Las
Vegas, Nevada, for Plaintiff-Appellant.

Theresa Haar (argued), Senior Deputy Attorney General;
Steve Shevorski, Head of Complex Litigation; Aaron D.
Ford, Attorney General; Office of the Attorney General, Las
Vegas, Nevada; for Defendants-Appellees.

OPINION

MILLER, Circuit Judge:

Daniel Vargas sued various Nevada officials under
42 U.S.C. § 1983. After reaching a settlement, he sought
attorney’s fees as the prevailing party. The district court
awarded just 10 percent of the fees Vargas claimed, and
Vargas appealed. We affirm in part, but because we
conclude that the district court provided an inadequate
explanation for such a significant cut, we reverse in part and
remand for further proceedings.

I

In 2013, a Nevada state court sentenced Vargas, then
16 years old, to juvenile detention for car theft. Vargas was
transferred to the Nevada Youth Training Center in Elko,
Nevada, where, he alleges, he was beaten, hogtied, and
deprived of necessary medical care. He then brought this
action in the District of Nevada against the administrator and
various employees of the Nevada Division of Child and
Family Services, as well as numerous officers and
employees of the Youth Training Center (collectively, the
“officers”). He asserted claims under section 1983 for
 VARGAS V. HOWELL 5

excessive force and denial of medical care, as well as state-
law tort claims.

After more than two years of litigation, including
extensive discovery, the parties entered into a settlement
under which Vargas received $99,999. The settlement
agreement stated that Vargas had “the right to and will seek
reasonable attorneys’ fees, costs and interest in this matter as
the prevailing party pursuant to 42 U.S.C. § 1988,” but that
the officers “reserve[d] the right to oppose that request.”

Vargas requested over $257,000 in attorney’s fees and
$39,000 in costs. About 80 percent of the fees were for work
performed by the Christiansen Law Offices, with the bulk of
those fees (over $184,000) attributable to R. Todd Terry, one
of the firm’s senior litigators. The remainder of the fees were
for two other firms. One was Lasso Injury Law, where Al
Lasso had been co-counsel for Vargas. The other was
Gentile Cristalli Miller Armeni Savarese. That firm did not
work on the case, but two of its attorneys, Paola Armeni and
Colleen McCarty, had initially been co-counsel for Vargas
while employed at a different firm. During the course of the
litigation, their former firm had dissolved and they had
withdrawn from representing Vargas, but their new firm
sought fees for the work they had performed.

The district court concluded that “the vast majority of
hours expended in this case were unreasonable.” The court
applied an “across-the-board percentage cut” of 90 percent
to the number of hours claimed by Terry. The court noted
that Vargas’s supplemental discovery disclosures had
estimated his damages at over $1 million, but “[t]he case
ultimately settled for $99,999, less than 10% of the lower
bound of any of plaintiff’s estimated damages,” and Vargas
“did not obtain injunctive relief or any other public benefit.”
The court added that “[i]t was unreasonable for . . . Terry to
6 VARGAS V. HOWELL

incur over $184,000 in attorney’s fees himself before
realizing the value of his client’s case was $99,999.” The
court also reduced the rate claimed by Terry and several of
his colleagues, and it excluded hours claimed for various
tasks that it deemed unnecessary.

The district court reduced Lasso’s hours by excluding
various time entries that it considered excessive or
duplicative. And it reduced his hourly rate because “neither
the motion nor his affidavit explain his experience or
qualifications.”

The district court declined to award any fees for
Armeni’s and McCarty’s work, noting that Armeni had
withdrawn from the case well before it settled and that the
settlement “was not due to the efforts of her or her
associates.” The court concluded that Armeni and McCarty’s
new firm did not have “standing to seek fees based on a
contingency fee arrangement negotiated between” Vargas
and their former firm.

In total, the district court awarded fees of about $26,000,
plus $16,000 in costs.

II

We begin by considering the 90 percent cut in Terry’s
hours, a cut that accounted for most of the reduction in the
overall fee award.

A district court, “in its discretion, may allow the
prevailing party” in a civil rights action “a reasonable
attorney’s fee.” 42 U.S.C. § 1988(b). The Supreme Court has
instructed that “[t]he initial estimate of a reasonable
attorney’s fee is properly calculated by multiplying the
number of hours reasonably expended on the litigation times
 VARGAS V. HOWELL 7

a reasonable hourly rate,” an approach commonly known as
the “lodestar” method. Blum v. Stenson, 465 U.S. 886, 888
(1984). Determining the number of hours reasonably
expended requires “considering whether, in light of the
circumstances, the time could reasonably have been billed to
a private client.” Moreno v. City of Sacramento, 534 F.3d
1106, 1111 (9th Cir. 2008). Reasonable hourly rates “are to
be calculated according to the prevailing market rates in the
relevant community.” Blum, 465 U.S. at 895.

Although the analysis begins by multiplying a
reasonable number of hours by a reasonable rate, it does not
end there. Our case law on the subject has been criticized in
a number of respects, and we have observed that some
district courts have found it “inscrutable.” McCown v. City
of Fontana, 565 F.3d 1097, 1103 (9th Cir. 2009). But no one
has complained that it unduly restricts the number of factors
a court may consider. To the contrary, we have identified no
fewer than 12 factors “to be considered in the balancing
process.” Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70
(9th Cir. 1975).

Here, the district court gave great weight to “the
important factor of the ‘results obtained,’” recognizing that
if the plaintiff “has achieved only partial or limited success,
the product of hours reasonably expended on the litigation
as a whole times a reasonable hourly rate may be an
excessive amount.” Hensley v. Eckerhart, 461 U.S. 424,
434, 436 (1983). The court concluded that Terry “billed an
unreasonable amount of time on a case that settled for a small
fraction of plaintiff’s requested damages award.”

In reviewing that conclusion, we are mindful that our
role is a limited one: “District court awards of attorney’s fees
under section 1988 are reviewed for abuse of discretion.”
Corder v. Gates, 947 F.2d 374, 377 (9th Cir. 1991). That
8 VARGAS V. HOWELL

deferential standard “is appropriate in view of the district
court’s superior understanding of the litigation and the
desirability of avoiding frequent appellate review of what
essentially are factual matters.” Hensley, 461 U.S. at 437. At
the same time, however, the district court must give some
“‘concise but clear’” explanation of “how it came up with
the amount.” Moreno, 534 F.3d at 1111 (quoting Hensley,
461 U.S. at 437). And the larger the difference between the
fee requested and the fee awarded, the “more specific
articulation of the court’s reasoning is expected.” Id.; see
also Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1112
(9th Cir. 2014) (“[A] reduction of 88 percent requires a more
specific explanation.”); Gates v. Deukmejian, 987 F.2d
1392, 1399–1400 (9th Cir. 1992).

We conclude that given the size of the cut the district
court imposed, the court’s explanation was inadequate. We
do not take issue with the general principle that a district
court may reduce a fee award if “‘the amount of recovery’
was modest relative to the amount [the plaintiff] initially
sought.” Caudle v. Bristow Optical Co., 224 F.3d 1014,
1029 n.11 (9th Cir. 2000) (quoting Hensley, 461 U.S.
at 436). Nor do we question the applicability of that principle
when a case is resolved through settlement. If a case settles
for a small fraction of what the plaintiff sought, it will often
be fair to say that “the degree of success obtained” by
plaintiff’s counsel was low. Hensley, 461 U.S. at 436; see
Caudle, 224 F.3d at 1029 n.11.

In some cases, the disparity between the amount sought
and the amount of a settlement can be so great that the
plaintiff’s low level of success, by itself, justifies a large
reduction in the fee award. For example, a substantial
reduction would be warranted in a case that settled solely for
its nuisance value. Indeed, it can be appropriate to deny fees
 VARGAS V. HOWELL 9

altogether “[w]here the plaintiff’s success on a legal claim
can be characterized as purely technical or de minimis.” Tex.
State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S.
782, 792 (1989); see also Fletcher v. City of Fort Wayne,
162 F.3d 975, 976 (7th Cir. 1998) (“[F]or trivial recoveries
the only reasonable award of fees is zero.”). In this case,
although the $99,999 settlement is less than what Vargas
initially sought, it is far more than a nuisance settlement. Had
the officers believed that they were settling the case for its
nuisance value, or that the settlement was so low that Vargas
had not really prevailed, they could have insisted that the
agreement say so. Instead, while they retained the right to
challenge the fee award, they did not question that Vargas
had genuinely prevailed in the litigation.

A reduction in fees could also be appropriate if a
settlement were prompted by adverse court rulings that
doomed the plaintiff’s chances of achieving anything more
than “partial or limited success.” Hensley, 461 U.S. at 436.
In McCown, for example, we held that a district court abused
its discretion by awarding more than $215,000 in attorney’s
fees and costs even though the plaintiff settled for only
$20,000 after eight of his nine claims were dismissed.
565 F.3d at 1100, 1103–04. Emphasizing that the amount
recovered by the plaintiff was a fraction of the amount
sought, we held that since “McCown’s victory clearly fell
far short of his goal,” it was unreasonable “to grant his
attorneys more than a comparable portion of the fees”
requested. Id. at 1104–05. But here, although the parties had
conducted discovery, no ruling from the district court had
significantly weakened or limited Vargas’s claims against
the officers.

Crucially, even as we reversed the fee award in McCown,
we cautioned that “the district court need not be so
10 VARGAS V. HOWELL

mechanical as to divide the amount of fees and costs
requested by the number of claims.” Id. at 1105. Here, the
district court appears to have employed just such a
“mechanical” approach, simply assuming that because
Vargas settled for 10 percent of what he sought, his lead
lawyer should recover only 10 percent of the fees requested.

The effect of that approach is to punish Vargas’s
attorneys for pursuing what might well have been a sensible
negotiation strategy. A reasonable attorney representing
Vargas could have made the strategic choice to present an
initial damages estimate as high as possible. Of course, an
unrealistically high estimate could make settlement talks
unproductive, and an attorney must also ensure that any
estimate presented to the court is “likely [to] have
evidentiary support after a reasonable opportunity for further
investigation.” Fed. R. Civ. P. 11(b)(3). But within those
limits, Vargas’s attorneys could reasonably have decided
that by offering a high damages estimate, they would retain
“room to later grant concessions, while still reaching a
favorable settlement.” Stephen J. Ware, Principles of
Alternative Dispute Resolution § 3.15, at 313 (3d ed. 2016).
Had they started from a lower number, the settlement might
have been lower. Whether or not that is the strategy Vargas’s
attorneys had in mind, they should not be faulted for
negotiating a settlement.

The district court’s approach threatens to create perverse
incentives for lawyers representing civil rights plaintiffs. If
fees are reduced whenever a case settles for less than the
initial demand, lawyers will be encouraged to make only
modest initial demands, limiting the potential recovery for
their clients. And as the litigation proceeds, they will be
encouraged to refuse to lower their demands, making
 VARGAS V. HOWELL 11

settlement more difficult and prolonging the litigation. No
one will be well served by that approach.

The district court also noted that the attorney’s fees
sought exceeded the amount recovered in the settlement.
That is a legitimate consideration in evaluating the
reasonableness of the work performed, but the court appears
to have treated it as dispositive, stating that “[i]t was
unreasonable for . . . Terry to incur over $184,000 in
attorney’s fees himself before realizing the value of his
client’s case was $99,999.” We have held just the opposite:
“It is not per se unreasonable for attorneys to receive a fee
award that exceeds the amount recovered by their clients.”
Gonzalez v. City of Maywood, 729 F.3d 1196, 1209 (9th Cir.
2013) (emphasis added). That holding reflects the Supreme
Court’s admonition that there need not be strict
proportionality between the damages recovered and the fees
awarded. In City of Riverside v. Rivera, 477 U.S. 561 (1986),
for example, the Court affirmed an award of more than
$245,000 in attorney’s fees to a prevailing party who had
recovered only $33,350 in damages, and it suggested that
“[a] rule that limits attorney’s fees in civil rights cases to a
proportion of the damages awarded would seriously
undermine Congress’ purpose in enacting § 1988.” Id.
at 564–65, 576 (plurality opinion); accord id. at 585 (Powell,
J., concurring in the judgment); see McCown, 565 F.3d
at 1104 (“A rule of proportionality is inappropriate.”).

In addition, the district court’s comparison of the
recovery and the fees overlooked that the recovery was the
product of a settlement that expressly contemplated an award
of fees. The court was therefore wrong to suggest that Terry
should have “realiz[ed] the value of his client’s case was
$99,999” and spent fewer hours working on it. In fact, the
value of the settlement was $99,999 plus fees.
12 VARGAS V. HOWELL

Although the district court also stated that Terry’s hours
“demonstrate[d] an inefficient use of resources” because “a
senior litigator” should not have performed tasks such as
“meticulously review[ing] the case file,” that reasoning does
not support the 90 percent cut. We have held that a court may
not reduce a fee award based on “speculation as to how other
firms would have staffed the case” or “whether it would have
been cheaper to delegate the work to other attorneys.”
Moreno, 534 F.3d at 1114–15. A conclusory statement about
inefficiency can justify “no more than a haircut” in a fee
award; it cannot justify a 90 percent reduction. Id. at 1116;
see Gonzalez, 729 F.3d at 1203 (“[T]he district court must
explain why it chose to cut the number of hours or the
lodestar by the specific percentage it did.”).

Nor is the 90 percent cut supported by our decision in
Johnson v. MGM Holdings, Inc, 943 F.3d 1239 (9th Cir.
2019). In that case, which did not involve section 1988, we
affirmed the district court’s 25 percent reduction of
counsel’s requested hours because the court explained why
such a reduction was appropriate and then “conducted a
percentage-of-recovery analysis as a cross-check.” Id.
at 1242. Significantly, we noted that “the percentage-of-
recovery method is not typically used in civil rights cases.”
Id. at 1242 n.3 (emphasis added). And we emphasized that
the percentage-of-recovery computation was not the sole
basis for a reduction in fees; it merely confirmed the
reasonableness of a reduction for which the district court
provided no fewer than six different well-articulated—and
apparently unrebutted—reasons. Id. at 1243.

To be clear, we do not hold that it would necessarily be
an abuse of discretion to reduce the fee award in this case
based on a reasoned finding that Vargas achieved limited
success, or based on findings that particular tasks performed
 VARGAS V. HOWELL 13

by Terry were unnecessary. We merely reaffirm our prior
decisions holding that a significant reduction requires a more
thorough explanation, and we conclude that the court did not
adequately justify the dramatic cut that it imposed. We
therefore remand for a recalculation of the number of hours
reasonably attributable to Terry.

We briefly address one additional argument raised by
Vargas. The district court determined that Vargas “did not
obtain injunctive relief or any other public benefit,” and
Vargas contends that he in fact achieved non-monetary
success because the policies of the Nevada Youth Training
Center now prohibit “hobbling.” See Morales v. City of San
Rafael, 96 F.3d 359, 365 (9th Cir. 1996) (district court must
consider a prevailing plaintiff’s “nonmonetary success”). In
developing that argument, Vargas moves to supplement the
record with various documents produced in discovery but
not made a part of the district court record. Although we
have “inherent authority to supplement the record in
extraordinary cases,” Lowry v. Barnhart, 329 F.3d 1019,
1024 (9th Cir. 2003), we see no reason to depart from the
general rule that “documents not filed with the district court
cannot be made part of the record on appeal.” Rudin v.
Myles, 781 F.3d 1043, 1057 n.18 (9th Cir. 2014); see Fed. R.
App. P. 10(a).

Vargas’s argument is unpersuasive in any event. The
settlement agreement contained no admission of fault by the
officers, and it did not compel any change in policy. While
all successful section 1983 actions benefit the public
generally by helping to encourage compliance with the law,
the record does not suggest that this case gave rise to any
special non-monetary benefit that would warrant
consideration in determining an appropriate fee award.
14 VARGAS V. HOWELL

III

We next consider the district court’s decision to deny
fees for the work performed by Armeni and McCarty. The
court reasoned that Armeni and McCarty’s new firm lacked
standing to seek fees for work those attorneys had performed
at a different firm. In focusing on the attorneys’ standing,
however, the district court asked the wrong question. We
have explained that “[s]ection 1988 vests the right to seek
attorney’s fees in the prevailing party, not her attorney.”
Pony v. County of Los Angeles, 433 F.3d 1138, 1142 (9th
Cir. 2006) (emphasis added). Vargas—not his attorneys—
moved for attorney’s fees and costs, and Vargas
unquestionably has standing to seek fees, including for the
work of Armeni and McCarty, who represented him for more
than nine months.

To be sure, Vargas signed a contingent fee agreement
with Armeni and McCarty’s previous firm, and it does not
appear that he has any agreement with their current firm. But
that does not affect Vargas’s right to seek attorney’s fees as
a prevailing party. Under section 1988, “an ‘attorney fee’
arises when a party uses an attorney, regardless of whether
the attorney charges the party a fee; and the amount of the
fee is the reasonable value of the attorney’s services.”
Centennial Archaeology, Inc. v. AECOM, Inc., 688 F.3d
673, 679 (10th Cir. 2012); see also Blum, 465 U.S. at 895–
96; Brinn v. Tidewater Transp. Dist. Comm’n, 242 F.3d 227,
234–35 (4th Cir. 2001). Whether Vargas’s agreement with
the now-dissolved firm gives Armeni and McCarty any right
to collect from Vargas is a separate matter. Its resolution
does not affect Vargas’s statutory entitlement to fees.
 VARGAS V. HOWELL 15

IV

Vargas also challenges the district court’s reductions of
his other attorneys’ hours and rates. “Reasonable people may
differ as to what number of hours was reasonable to spend
on this case. But once we are satisfied that the district court
has considered the appropriate factors for the appropriate
reasons, our reviewing function is finished.” Cunningham v.
County of Los Angeles, 879 F.2d 481, 486 (9th Cir. 1988)
(emphasis omitted). Had we been called upon to determine
a reasonable fee in the first instance, our calculation might
have differed from that of the district court, but that does not
mean that the court abused its discretion.

As to the number of hours, Vargas raises three
objections. First, the district court excluded hours that
Vargas’s counsel spent preparing a motion for
reconsideration of an order dismissing one of Vargas’s
claims; the court noted that no such motion was filed. Vargas
argues that his counsel had a duty to explore all potential
theories that might benefit him, even if they turned out not
to justify filing a motion. We agree that work spent
investigating possible avenues of relief is not necessarily
unreasonable just because those avenues prove to be dead
ends. And an attorney might reasonably prepare a motion
only to decide, upon further reflection, that the motion is not
worth filing. But Vargas did not explain to the district court
why preparing this particular unfiled motion was reasonable.
“[T]he district court is in the best position to discern what
work was unnecessary,” and we see no abuse of discretion
in the court’s determination that, in these circumstances, the
time spent on the motion for reconsideration was not well
spent. Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir.
2011).
16 VARGAS V. HOWELL

Second, the district court awarded less than Vargas
sought for the reply brief in support of his fee request. The
court emphasized that “only one sentence in the entire brief
contains a case citation.” We hesitate to endorse a rule that
would tie a lawyer’s compensation to the number of citations
contained in a brief. Our experience suggests that even
without such a rule, few briefs suffer from excessive brevity
or a paucity of citations. But the court also explained that
Vargas did not specify “who prepared the reply brief, what
his or her billing rate was, and how many hours he or she
spent preparing the brief.” It was Vargas’s burden to “submit
evidence supporting the hours worked.” Hensley, 461 U.S.
at 433. The court did not abuse its discretion in determining
that Vargas did not meet that burden.

Third, the district court reduced Lasso’s hours by
excluding time entries that it considered excessive or
duplicative, such as time spent with undisclosed witnesses,
time spent revising a complaint that had already been filed,
and time spent attending depositions and mediations in
which Lasso did not participate. Lasso’s declaration offered
no explanation for those apparently redundant tasks. The
district court’s order provided a clear articulation of its
reasoning for excluding the hours. That is all that is required.
See Moreno, 534 F.3d at 1111–12.

Vargas’s objections to the district court’s rate reductions
fare no better. Parties seeking fees have the “burden of
producing evidence that their requested fees are ‘in line with
those prevailing in the community for similar services by
lawyers of reasonably comparable skill, experience and
reputation.’” Chaudhry, 751 F.3d at 1110 (quoting
Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th
Cir. 2008)). In evaluating the requested rate, “judges are
justified in relying on their own knowledge of customary
 VARGAS V. HOWELL 17

rates and their experience concerning reasonable and proper
fees.” Ingram, 647 F.3d at 928.

To identify prevailing market rates, the district court
examined Vargas’s evidence of his attorneys’ rates, skill,
and experience. It also examined the officers’ evidence,
which consisted of a declaration by Kirk Lenhard, a Nevada
attorney. Vargas argues that the district court should have
disregarded the Lenhard declaration because Lenhard was
not timely disclosed as a witness. Vargas never raised that
objection below, so we will not consider it. See Manta v.
Chertoff, 518 F.3d 1134, 1144 (9th Cir. 2008). Vargas also
contends that Lenhard identified market rates using cases
that were not comparable to this one. But all three of
Lenhard’s cases involved civil litigation, each with multiple
claims, and two involved both state and federal law. The
district court is more familiar with the Nevada legal market
than we are, and it could reasonably have chosen to rely on
those cases.

Vargas further argues that the district court abused its
discretion by reducing Lasso’s hourly rate to that of a first-
year associate. The court did so because Vargas did not
explain Lasso’s experience or qualifications. Given the
limited information Vargas provided, it was not an abuse of
discretion to reduce Lasso’s hourly rate.

Finally, Vargas contends that, having already reduced
Terry’s hours, the district court engaged in impermissible
double counting when it also reduced his rate. We have
cautioned courts against using the “simplicity of a given task
as justification for a reduction” in both an attorney’s hours
and his or her hourly rate. Moreno, 534 F.3d at 1116. While
we reverse the district court’s decision to reduce Terry’s
hours, we note that its reasons for doing so—limited success
and inefficient use of resources—were different from its
18 VARGAS V. HOWELL

reasons for reducing Terry’s rate—an assessment of
prevailing market rates in the community for a similarly
experienced litigator. That was not double counting.

AFFIRMED in part, REVERSED in part, and
REMANDED. Motion to supplement DENIED.

The parties shall bear their own costs.

BENITEZ, District Judge, dissenting in part:

I respectfully dissent from the conclusion in Part II that
the district court’s approach was mechanical and its
explanation inadequate.

Not too long ago, while reversing a § 1988 award
because it was not adjusted downward for limited success,
we empathized with our district court colleagues who “may
have found the case law on this issue to be inscrutable.”
McCown v. City of Fontana, 565 F.3d 1097, 1103 (9th Cir.
2009). Today, we reverse a § 1988 award that was adjusted
downward because of limited success – not necessarily
because the adjustment was too large but because a large
adjustment requires a larger explanation.

“Under Hensley [v. Eckerhart, 461 U.S. 424, 436
(1983)], of course, ‘the most critical factor in the final
determination of fee awards is the degree of success
obtained.’ Where recovery of private damages is the
purpose of a civil rights litigation, a district court, in fixing
fees, is obligated to give primary consideration to the amount
of damages awarded as compared to the amount sought.”
City of Riverside v. Rivera, 477 U.S. 561, 585 (1986)
(Powell, J. concurring). “Indeed, ‘the most critical factor’ in
 VARGAS V. HOWELL 19

determining the reasonableness of a fee award ‘is the degree
of success obtained.’” Farrar v. Hobby, 506 U.S. 103, 114
(1992) (quoting Hensley, 461 U.S., at 436). And this is what
the district court did. As the majority recognizes, the district
court “gave great weight” to the “results obtained” factor.
Supra at 7.

Attorney’s fees awarded under 42 U.S.C. § 1988 “must
be adjusted downward where the plaintiff has obtained
limited success on his pleaded claims, and the result does not
confer a meaningful public benefit.” McCown, 565 F.3d at
1103. “A reduced fee award is appropriate if the relief,
however significant, is limited in comparison to the scope of
the litigation as a whole.” Hensley, 461 U.S. at 440.

In judging the plaintiff’s success and the reasonableness
of hours, “a district court should ‘give primary consideration
to the amount of damages awarded as compared to the
amount sought.’” Farrar v. Hobby, 506 U.S. 103, 114
(1992) (quoting Rivera, 477 U.S. at 586). “[T]he district
court’s calculation of an award need not be done with
precision.” Chalmers v. City of Los Angeles, 796 F.2d 1205,
1211 (9th Cir. 1986), opinion amended on denial of reh’g,
808 F.2d 1373 (9th Cir. 1987). “[W]e do not require ‘an
elaborately reasoned, calculated, or worded order and a brief
explanation of how the court arrived at its figures will do
. . . .’” Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir.
1992) (citing Cunningham v. County of Los Angeles,
879 F.2d 481, 485 (9th Cir. 1988)).

Percentages and across-the-board cuts are sometimes
necessary tools for district courts fashioning reasonable fee
awards. When percentages are used, district courts do have
a responsibility to set forth a “concise but clear” explanation
of their reasons for choosing a given percentage reduction
and a duty to independently review the applicant’s fee
20 VARGAS V. HOWELL

request. Gates v. Deukmejian, 987 F.2d 1392, 1400 (9th Cir.
1992).

That is precisely what the district court did in this case.
In a ten-page decision, the district court identified the correct
legal standards, provided an explicit lodestar calculation,
determined the number of reasonable hours spent and clearly
explained why the number of hours was reduced. It
determined a reasonable hourly rate, engaged in a
meaningful comparison of damages sought to damages
awarded, noted the lack of public benefit achieved, and
provided a concise and clear explanation of its reasons for
the fees awarded.

In this case, the district court began with the most
important factor, i.e., the limited degree of success. It noted
the plaintiff sought general damages between $1,136,453
and $1,541,833 plus medical expenses of $119,651, but
settled the case for only $99,999. According to Farrar and
Hensley, the district court should be able to stop there.
“Having considered the amount and nature of damages
awarded, the court may lawfully award low fees or no fees
without reciting the 12 factors bearing on reasonableness.”
Farrar, 506 U.S., at 115 (citing Hensley, 461 U.S., at 430,
n. 3). Nonetheless, the district court went farther. It reduced
the number of reasonable hours, calculated a lodestar
amount, and recited the Kerr factors. See Kerr v. Screen
Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (adopting
12 factors for consideration in attorney’s fees cases).
Notably, our Kerr decision arose from a case where the
district court awarded less than 50% of fees requested with
a single sentence explanation: “‘The court believes that
amount to be reasonable under all the circumstances of this
case.’” Id. at 69. In this appeal, the district court’s
 VARGAS V. HOWELL 21

explanation was considerably longer – spanning most of its
ten-page decision.

The district court addressed Kerr factor 1 without saying
it directly. (Factor 1 is the “time and labor required.”) The
district court said that plaintiff’s counsel spent unreasonable
amounts of time on drafting motions, reviewing discovery,
and getting up to speed on the case. Regarding Kerr factor
3, which is the skill requisite to perform the legal service
properly, the district court pointed out that plaintiff’s senior
attorney spent an inordinate amount of time on tasks that
could have been done by attorneys of lesser skill or
paralegals. The district court noted a law clerk drafted three
deposition notices in half an hour, in contrast to when the
senior attorney drafted deposition notices, it took him
2.10 hours to draft four notices. Additionally, the district
court found that the itemized billings contained “numerous
redundancies,” and fees billed for a motion for
reconsideration that was never filed. Of course, the district
court addressed the subject of Kerr factor 8, i.e., the amount
sought and the case results. The district court concluded that
it was unreasonable for the senior attorney to bill $184,000
in fees before realizing that the value of his client’s case was
$99,999. The district court also explained how it arrived at
the $450 hourly rate for attorney Terry, relying on a
declaration and other local cases (which is Kerr factor 9). In
reducing the award for a reply brief, the district court pointed
out not only that the document offered only one case citation,
but that the author was not named, nor the author’s billing
rate, nor how many hours were spent preparing the brief.
Kerr factor 2, the novelty and difficulty of the question
involved, and Kerr factor 12, awards in similar cases, were
implicitly considered by the district court when it explained
that spending 535 hours to win a purely monetary judgment
of $99,999 would constitute an impermissible windfall to
22 VARGAS V. HOWELL

plaintiff’s counsel and that reducing the award will not deter
qualified attorneys from pursuing other civil rights litigation.

Some of the remaining Kerr factors were not addressed
by plaintiff or were lightly touched upon. For example,
regarding Kerr factor 4, in the fee motion counsel said that
his law firm could have spent the 330 hours on other
litigation but offered no specifics. For Kerr factor 6, counsel
said the fee was contingent, but did not elaborate. Counsel
said that time limitations imposed by the client or
circumstances were not a factor (Kerr factor 7). The district
court did not spell out its thoughts on Kerr factor 10: the
undesirability of the case. But with 25 years of experience
in private practice and 20 more years on state and federal
benches, it is a pretty good bet that the district judge had
accurately considered the factor.

In other words, the district court provided the required
concise but clear explanation for its decision, evincing the
district correctly exercised its discretion and that the award
was reasonable. Johnson v. MGM Holdings, Inc., 943 F.3d
1239, 1242 (9th Cir. 2019) (“The district court provided a
clear and concise explanation for its lodestar calculation and
its reasonableness cross-check, enabling us to determine that
the district court’s award was reasonable, based on the
record before it – our case law requires nothing more.”)
(citing McCown, 565 F.3d at 1102). Johnson recently
approved a 25% across the board cut to a lodestar calculation
– ultimately approving an $184,000 fee rather than the
$350,000 fee plaintiff requested upon settling a class action.

As was the case in Johnson, in this case I have no
difficulty understanding why the district court made the fee
award it did and I am confident that it was the result of
reasonable and experienced discretion. Yet, in view of our
inscrutable jurisprudence, it is understandable that the
 VARGAS V. HOWELL 23

majority would try to clarify where the district court fell
short. I do not agree, however, that it has succeeded. Our
opinion today does nothing to de-mystify the “inscrutability”
of our law on the subject, and it does nothing to clarify for
trial court judges what it is that they must do. Falling short
of clarifying our jurisprudence, the majority reverses,
requiring a “more thorough explanation” from the district
court without setting forth how much more thorough or
when an opinion will be long enough to be deemed adequate.
Ultimately, our opinion today merely increases the writing
burden on trial court judges.