NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 11 2017
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
MERRIWEATHER ROSE FRANKLIN, No. 16-16724
Plaintiff-Appellant, D.C. No. 4:12-cv-03503-PJH
v. MEMORANDUM
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California, Oakland
Phyllis J. Hamilton, Chief District Judge, Presiding
Submitted December 4, 2017
San Francisco, California
Before: M. SMITH and IKUTA, Circuit Judges, and BATES, District Judge.
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable John D. Bates, Senior United States District Judge for
the District of Columbia, sitting by designation.
1
Merriweather Rose Franklin appeals the district court’s order granting in part
and denying in part her motion for attorney’s fees pursuant to 28 U.S.C.
§ 2412(d)(1)(A). Franklin challenges two reductions that the district court made to
the hours requested by one of her attorneys, Ralph Wilborn: (1) a twenty percent
reduction to all of Wilborn’s briefing hours based on his unfocused and scattershot
briefing, and (2) an additional eleven-hour reduction to the hours claimed for the
opening brief in Franklin’s merits appeal to this court because that brief substantially
was cut-and-pasted from her summary judgment brief before the district court. We
have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
We review the district court’s calculation of reasonable hours for an abuse of
discretion. Costa v. Comm’r of Social Sec. Admin., 690 F.3d 1132, 1135 (9th Cir.
2012). Contrary to Franklin’s assertion, the district court applied the correct law and
considered the correct factors when it determined the reasonableness of the
attorney’s hours. See Hensley v. Eckerhart, 461 U.S. 424, 434, 436–37 (1983);
Costa, 690 F.3d at 1135. The district court had the discretion to exclude “excessive,
redundant, or otherwise unnecessary” hours. Hensley, 461 U.S. at 434, 436.
The district court did not abuse its discretion by reducing Franklin’s fee
award. The district court sufficiently described why the billed hours were excessive
in this case by providing a concise yet comprehensible explanation for both
reductions. See Costa, 690 F.3d at 1136–37; Moreno v. City of Sacramento, 534
2
F.3d 1106, 1112 (9th Cir. 2008). The district court first explained that a twenty
percent reduction to all of Wilborn’s briefing hours was appropriate because the
briefs in both courts raised six different legal arguments, but made little attempt to
focus attention on the strongest grounds for remand or otherwise winnow the issues.
The district court, which had a superior understanding of this case, was in the best
position to judge the reasonableness of Wilborn’s billed time. Welch v. Metro. Life
Ins. Co., 480 F.3d 942, 949 (9th Cir. 2007). The district court then stated that a
further reduction of the hours claimed for the opening appellate brief was appropriate
because that brief overwhelmingly was copied from Franklin’s summary judgment
briefing and contained only a small portion of original writing, and Wilborn failed
to account for this in his requested fee. The reduction was therefore based on a
distinct rationale and was not a double sanction.1 Contrary to Franklin’s assertions,
then, the record supports the district court’s decision to impose both fee reductions.
1
The district court stated that ten hours was “more than reasonable for an
experienced advocate familiar with the record” to produce what amounted to nine
original pages of writing. Franklin identifies an apparent inconsistency with this
statement because she claims that the district court left Wilborn only 5.8 hours to
prepare the opening appellate brief. However, that figure does not include the 6.4
hours (originally eight hours, reduced by 20%) that the district court excluded from
this second reduction, which Wilborn block-billed for both reviewing the record and
drafting the opening brief. It was not unreasonable for the district court to factor in
a portion of those hours to reconcile its ten-hour estimate with its actual reductions.
True, the district court did not explicitly indicate that it relied on these 6.4 hours to
reconcile its ten-hour estimate, but this Court “may affirm on any basis supported
by the record below.” Mahoney v. Sessions, 871 F.3d 873, 877 (9th Cir. 2017).
3
AFFIRMED.
4