Hiken v. Dep't of Defense, No. 13-17073 (9th Cir. 2016)Annotate this Case
MLTF 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.