Hiken v. Dep't of Defense, No. 13-17073 (9th Cir. 2016)
Annotate this CaseMLTF substantially prevailed in a Freedom of Information Act (FOIA), 5 U.S.C. 552, action filed against the Government. MLTF filed a motion for attorney fees pursuant to 5 U.S.C. 552(a)(4)(E), requesting that the court award it fees consistent with the current billing rates for its attorneys. The district court (Ware, C.J.) granted the motion in part, awarding MLTF attorney fees calculated at $200 an hour, which was well below the current billing rates for its attorneys. The district court (Rogers, J.), upon the Government’s motion to consider the issue de novo, determined that the first judge had not erred in awarding only $200 an hour. The court concluded that notwithstanding MLTF’s failure to designate for appeal Judge Ware’s underlying fee order, MLTF’s intent to appeal the underlying fee award is apparent from both the factual circumstances and MLTF’s extensive briefing on the issue; the Government also cannot demonstrate prejudice; and thus the court chose to exercise its discretion and consider the appeal on the merits of Judge Ware's underlying fee award. On the merits, the court concluded that, consistent with its burden, MLTF provided substantial evidence of the prevailing market rate for the applicable periods. Accordingly, the court vacated the district court's fee award and remanded for a recalculation of the appropriate rate. Finally, the court concluded that MLTF falls within the class of litigants entitled to attorney fees on appeal, and MLTF may request attorney fees on appeal in accordance with Ninth Circuit Rule 39-1.6. Accordingly, the court vacated and remanded.
Court Description: Attorneys’ Fees. The panel vacated the district court’s initial attorneys’ fee award to plaintiffs under 5 U.S.C. § 552(a)(4)(E) after plaintiffs substantially prevailed in a Freedom of Information Act action brought against the federal government, and remanded for recalculation of attorneys’ fees. The district court on initial review awarded plaintiffs attorneys’ fees calculated at $200/hour, which was well below the current billing rates for its attorneys. The district court, upon a motion to reconsider, determined that the first judge had not erred in awarding only $200 an hour. The panel held that notwithstanding plaintiffs’ failure to designate for appeal the district court’s underlying fee order, plaintiffs’ intent to appeal the underlying fee award was apparent from both the factual circumstances and plaintiffs’ extensive briefing on the issue. The panel exercised its discretion, and considered the merits of the underlying fee award. The panel held that consistent with its burden, plaintiffs provided substantial evidence of the prevailing market rate for the applicable periods, and this evidence was properly submitted to the district court. The panel further held that in determining that prevailing market rate, the district court HIKEN V. DEP’T OF DEFENSE 3 relied on authority that was not apposite, and failed to provide a requisite clear explanation for the fee award. Finally, the panel held that plaintiffs fell within the class of litigants entitled to attorneys’ fees on appeal, and may request attorneys’ fees on appeal in accordance with Ninth Circuit Rule 39-1.6. Judge Rawlinson dissented because she would hold that plaintiffs did not timely appeal the underlying fee award, and that the district court acted within its discretion in calculating the fee award. She would affirm the district court.
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