Petition for Writ of Certiorari — Schneider v. County of San Diego

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Supreme Court, U.S.

(I) FILED

O2 244 Aue 1 4 2002

No. O2-___ @FPICE OF THE OLERK

IN THE

Supreme Court of the Gnited States

LOUIS SCHNEIDER,

Petitioner,

COUNTY OF SAN DIEGO and

GREGORY REYNOLDS, dba REYBRO, INC.,

Respondents.

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

KENNETH CHESEBRO

8024 MESA DRIVE, # 173

AUSTIN, TX 78731

(512) 565-7244

Counsel for Petitioner _

August 14, 2002

BATEMAN & SLADE, INC. : BOSTON, MASSACHUSETTS

QUESTION PRESENTED

Whether the United States Court of Appeals for the

Ninth Circuit correctly held, in conflict with other

circuits that have decided the question, that in ruling on

a motion for statutory attorneys’ fees in an adversarial

setting a district court may disregard uncontroverted

evidence on the actual historical market rates of the

timekeepers’ services and on the actual number of hours

reasonably expended on the matter.

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......- eee eter eens iv

OPINIONS BELOW . 0... ccc cc crc cence rcveces 1

Fo. te, ee ai eo 1

STATUTORY PROVISION INVOLVED ........----: 1

STATEMENT OF THE CASE .......--- eee seers 2

The Merits Litigation ..........-++-+eeeeees 3

The Interim Fee Motion ........-+-+-++ee0% 5

The Final Fee Motion .........-++eeeeees 11

The Court of Appeals’ Decision ........-.---: 14

REASONS FOR GRANTING THE WRIT ......-.--- 16

oe) =) 9 ea ieee aio i a 29

TABLE OF AUTHORITIES

CASES: PAGE:

Balcor Real Estate Holdings, Inc. v. Walentas-

Phoenix Corp., 73 F.3d 150 (7th Cir: 1996) .... 22

Barjon v. Dalton, 132 F.3d 496 (9th Cir. 1997),

cert. denied, 525 U.S. 827 (1998) ...... 14-15, 25

Barrow v. Falck, 977 F.2d 1100 (7th Cir. 1992) 11,22

Blanchard v. Bergeron, 489 U.S. 87 (1989) ...... 18

Blum v. Stenson, 465 U.S. 886 (1984) ..... 18-19, 26

Burlington v. Dague, 505 U.S. 557 (1992) ........ 17

Casey v. City of Cabool, —

5S Pe COO Pee es BOE vk be 6 Cheha Oe 23

Coleman v. Kaye, 87 F.3d 1491 (3d Cir. 1996) ... 21

Cunningham v. City of McKeesport, 753 F.2d 262

(3d Cir. 1985), vacated on other grounds,

478 U.S. 1015 (1986), reinstated,

807 F.2d 49 (3d Cir. 1986), cert. denied,

OR et ee ee ee eee 19-21, 27

Davis v.San Francisco, 976 F.2d 1536

SE. Kae Sure ones kek Wake eee eho 23

Gisbrecht v. Barnhart, 122 S. Ct. 1817 (2002)..... 17

Gusman v. Unisys Corp., 986 F.2d 1146

ty i 3S er een oe ee 15, 22-23

Hensley v. Eckerhart, 461 U.S. 424 (1983) ..... 16-17

In re Continental Illinois Sec. Litigation, 962 F.2d

ee errr rarer 22

Islamic Center of Mississippi v. Starkville,

876 F.2d 465 (Sth Cir. 1969)... cece es 24

Johnson v. Georgia Highway Express, Inc.,

i | Oe A Oe eee 17

Kelley v. Metropolitan County Board of Education,

773 F.2d 677 (6th Cir. 1985) (en banc), cert.

denied, 474 U.S. 1083 (1986) .............. 24

Maceira v. Pagan, 698 F.2d 38 (1st Cir. 1983) .... 23

Missouri v. Jenkins, 491 U.S. 274 (1989) ........ 18

CASES: PAGE:

Pennsylvania v. Delaware Valley Citizens’ .

Council for Clean Air, 478 U.S. 546 (1986) ..... 17

Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 483 U.S. 711 (1987) .... 18

Pressley v. Haeger, 977 F.2d 295 (7th Cir. 1992) .. 22

Rode v. Dellarciprete, 892 F.2d 1177 (3d Cir. 1990) 21

Schneider v. County of San Diego, 28 F.3d 89

(9th Cir. 1994), cert. denied,

Dae Wale BROUURUOEE cA kre acca ebvewes hen 3-4

Schneider v. County of San Diego, 1998 U.S. App.

LEXIS 8207 (9th Cir.), cert. denied,

Se i BT NRE. hohe bdee cee cede eae 4

Shakopee Mdewankton Sioux Community v.

City of Prior Lake, 771 F.2d 1153 (8th Cir. 1985),

cert. denied, 475 U.S. 1011 (1986) ......... 22

Smith v. Philadelphia Housing Authority, 107 F.3d

ee Sk EE 6 5 4 0s o baa ae ee 21

STATUTES AND RULES:

pg eo eer wre err 1

ro errr rer ra 2

et ea SE 6s 6b hha eb wk eee 2

a ee 8 ere eee eee passim

FOG. Bs Gat. Fs Pe. c-e ke eneew wees vanees 11-13

ARTICLES:

Samuel R. Berger, Court Awarded

Attorneys’ Fees: What is “Reasonable”?,

yo Se OM ee cg) eee 16

Charles Silver, Unloading the Lodestar: Toward

a New Fee Award Procedure, 70 Tex. L. Rev.

ey ee EN. 1k sa i Ss Chee we Ree eae eee ek 16

PETITION FOR A WRIT OF CERTIORARI

Louis Schneider respectfully petitions this Court for

a writ of certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

The Court of Appeals’ decision denying rehearing

(App. 6a) is unreported. Its decision on the merits (App.

la-5a) is unreported, and is reproduced at 2002 U.S.

App. LEXIS 4999 (9th Cir. Mar. 21, 2002). The decisions

of the district court regarding attorneys’ fees and

expenses that were the subject of the appeal (App. 7a-

102a) are unreported.

JURISDICTION

The decision of the court of appeals was entered on

March 21, 2002. A timely petition for panel rehearing

and rehearing en banc was denied on May 16, 2002.

App. 6a. This Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1).

STATUTORY PROVISION INVOLVED

42 U.S.C. § 1988 provides in relevant part:

§ 1988. Proceedings in vindication of civil

rights; attorney’s fees; expert fees.

(b) In any action or proceeding to enforce a

provision of sections 1977, 1977A, 1978, 1979,

1980, and 1981 of the Revised Statutes, title IX

of Public Law 92-318, the Religious Freedom

Restoration Act of 1993, the Religious Land Use

and Institutionalized Persons Act of 2000, title

VI of the Civil Rights Act of 1964, or section

40302 of the Violence Against Women Act of

1994, the court, in its discretion, may allow the

prevailing party, other than the United States, a

reasonable attorney’s fee as part of the costs

STATEMENT OF THE CASE

This is a takings and procedural due process lawsuit

brought by petitioner Louis Schneider pursuant to 42

U.S.C. § 1983 and 1988 against respondent County of

San Diego (“the County”) and its independent contractor,

respondent Gregory Reynolds, dba Reybro, Inc.

(“Reynolds”). The district court had subject-matter

jurisdiction under 28 U.S.C. § 1331.

After Schneider prevailed in the litigation the district

court, in ruling on his motions for attorneys’ fees and

expenses, disregarded uncontroverted evidence on the

actual historical market rates of the timekeepers’ services

and on the actual number of hours reasonably expended

on the case. The district court slashed these historical

rates by approximately half and awarded zero hours for

a major phase of work on the case. The district court

made these rulings despite Schneider’s objection that

doing so would be contrary to this Court’s interpretation

of 42 U.S.C. § 1988 and square authority from other

circuits, particularly the Third Circuit. The court of

appeals, bound by past precedent, held in an

unpublished decision that the district court was free to

disregard such evidence even in an adversarial setting

where the fee opponent did not controvert the evidence.

The decision below conflicts with decisions of this

Court and of other circuits in the frequently litigated area

of Section 1988 attorneys’ fees. These decisions

emphasize the objective, market-oriented, record-based

nature of the “lodestar” method, which replaced the

subjectivity of the earlier multi-factor approach to fees,

streamlining and lending greater predictability to

statutory fee litigation. This case provides an ideal

vehicle for this Court to restore consistency to the

procedural framework of Section 1988 fee litigation.

The Merits Litigation

Schneider’s lawsuit resulted from respondents’

destruction of thirteen motor vehicles owned by

Schneider in 1989. The vehicles (nine buses, two motor

homes, and two automobiles) were parked on a 1.4-acre

parcel of land owned by Schneider in rural San Diego

County. The land was zoned for agricultural use only.

After a hearing, the County Abatement Board concluded

that the vehicles presented a zoning violation under San

Diego County Zoning Ordinance §§ 1006 and 6799, which

prohibit the parking of commercially registered vehicles

in agricultural areas, and that this zoning violation

constituted a public nuisance. Schneider v. County of San

Diego, 28 F.3d 89, 90-91 (9th Cir. 1994), cert. denied, 513

U.S. 1155 (1995).

Schneider was ordered to abate the nuisance by

removing the vehicles from his property within 30 days,

or else County officials would “do or cause to be done

whatever work is necessary to abate the public

nuisance.” When Schneider failed to move the vehicles

within 30 days, the County abated the nuisance by hiring

Reynolds to tow and destroy them. The vehicles were

towed, and Schneider was permanently deprived of them,

on December 21, 1989. Jd. at 91.

In 1990 Schneider filed suit in the U.S. District Court

for the Southern District of California ultimately alleging,

among other things, that he was deprived of his property

in violation of the takings clause (as destroying the

vehicles was an irrationally extreme means of abating the

nuisance posed by their location), and in violation of

procedural due process (as no one had given Schneider

notice that if he failed to move the vehicles they would be

destroyed, rather than towed and stored at his expense).

Id. at 92-93.

process counts, and on several other counts, and

remanded the case for trial. Id. at 92-93.

Following further discovery and extensive motion’

practice by both sides, a four-day trial was held in 1995.

At the close of all the evidence, Schneider moved for

judgment as a matter of law on the takings count and the

procedural due process count on the basis that it was

irrational for the County to have destroyed his thirteen

vehicles as its method of abating the nuisance posed by

their location, and that he was never given notice of the

County’s extreme method of nuisance abatement. The

district court denied the motion. The jury ruled against

Schneider on all counts.

Schneider again appealed. In 1998, the court of

appeals agreed with Schneider that no rational juror

could find against him on his takings and procedural due

process counts, and that he was therefore entitled to

judgment as a matter of law. Schneider v. County of San

Diego, 1998 U.S. App. LEXIS 8207, *2-*9 (9th Cir.), cert.

denied, 525 U.S. 1003 (1998). The court of appeals

remanded the case “with instructions to grant the motion

and determine damages.” Id. at *2.

On remand, Schneider restricted his claim for actual

damages to his entitlement under the takings count to

the fair market value of his thirteen vehicles on the date

of their taking in 1989, plus constitutionally mandated

prejudgment interest on that sum to compensate him for

the delay in payment of fair market value. ER 260-65,

289-91, 346-47. (The eight-volume Excerpts of Record

filed by Schneider in the court of appeals are referenced

“ER __..”) The parties settled the fair market value of four

of the vehicles, and a jury trial held on January 21 and

26, 1999, resolved the 1989 fair market value of the

remaining nine vehicles. ER 297, 300, 349-50. On

March 30, 2000, the district court entered final

judgment in the amount of $67,795.50 as the fair market

value of the thirteen vehicles, plus $34,145.54 in

prejudgment interest, for a total of $101,941.04. ER

1621-22. The district court rejected Schneider’s request

)

for nominal damages on his procedural due process

count. ER 260-67, 359, 364, 900-03.

Schneider again appealed, arguing that the district

court had committed legal error in its framework for

calculating prejudgment interest and in its refusal to

award nominal damages on the procedural due process

count. The court of appeals again reversed the district

court, remanding the case for a redetermination of

prejudgment interest under a proper legal standard and

directing the district court to award nominal damages on

Schneider’s procedural due process claim. Schneider v.

County of San Diego, 285 F.3d 784 (9th Cir. 2002).”

The Interim Fee Motion

The approximately $102,000 obtained by Schneider

as the fair market value of his vehicles, adjusted for delay

in payment, is more than ten times the highest

settlement offer ever made by Reynolds. ER 766-67 { 4.

The County never made any settlement offer, and the

amount recovered by Schneider is 100,000 times the cap

the County urged as the maximum Schneider should

recover. See ER 525 (“Our argument was, is, and now

forever will be that Mr. Schneider... [is] not entitled to

the value of the buses at all. He’s only entitled to one

dollar damages period.”). Having thereby been forced to

litigate to finality, pursuant to 42 U.S.C. § 1988

Schneider sought an award of attorneys’ fees and

expenses for all the work done by Schneider’s counsel

over the course of a decade to overcome the tenacious

resistance of the County and Reynolds and the adverse

rulings of the district court. See also note 6, infra.

1 That remand is in progress. It concerns issues wholly

separate from issues regarding attorneys’ fees addressed in the court

of appeals’ decision below and posed by this petition.

Schneider’s interim fee motion was filed a year before

the entry of final judgment.” The interim fee motion

covered the first nine years of work on the case. As to the

number of hours worked, after exercising substantial

billing judgment that significantly reduced the hours

claimed, see ER 385 913, 561 916, 736, 767-68 96, 835-

36, Schneider included in the “lodestar” request 2250

hours of work by twelve timekeepers (2111.46 lawyer

hours, 59.85 paralegal hours, and 78.7 law student

hours), supported by 125 pages of detailed time records.

ER 381, 383-84, 414-87, 561-62, 573-623, 951-52. In

their opposition papers, the County and Reynolds

asserted objections to 63% of the hours claimed. ER

648-58, 674-87, 1086-87, 1867 7 23, 1907. Schneider’s

counsel filed detailed declarations rebutting these

assertions. ER 763-70, 808-25, 837-91. The district

court upheld 93% of the hours claimed, finding that

Schneider’s counsel and their support personnel

reasonably spent a total of 2091 hours on this litigation

between 1990 and the filing of the interim fee motion on

March 29, 1999. App. 13a. No party appealed from this

ruling.

Schneider also included in the lodestar request

$46,230.12 in out-of-pocket expenses incurred by his

counsel. ER 385, 562. In their opposition papers, the

County and Reynolds asserted objections to many of the

? Schneider filed the interim fee motion on March 29, 1999,

within the 60-day period set by the district court at the close of the

trial on fair market value, on January 26, 1999. See ER 345-48, 350

(“you're to . . . file your motion for attorneys’ fees . . . in 60 days). The

60th day after January 26, 1999, was Saturday, March 27, so that

under Fed. R. Civ. P. 6(a) the due date for the motion was the next

business day, Monday, March 29, the date the motion was filed. After

the interim motion was timely filed as directed by the district court,

the district court indicated that it thought it had set a 60-day

deadline for the motion to be heard, but that its actual intent was

now irrelevant. See ER 496 (“I was under the impression it was [a]

date to hear. ... In any event, we'll give the defense time to

respond.”).

expenses. ER 654-58, 682-87. The district court upheld

98% of the expenses claimed, totaling $45,217.95. App.

78a-81a. No party appealed from this ruling.

The only aspect of Schneider's interim fee motion still

at issue is his request that the lodestar be calculated

using the same hourly market rates at which the services

of ten of the timekeepers were historically billed and

collected by Schneider’s counsel on other cases between

1990 and 1999, with these rates adjusted upward to

reflect the delay in payment using the lowest interest rate

historically charged in the California legal market for

extended delay in payment, 10% simple interest.*

As to hourly rates, through declarations filed in

support of his interim fee motion Schneider proved that

for these ten timekeepers, Schneider was seeking the

same hourly rates at which their time was historically

billed and collected on other cases at the same time the

services were being rendered on this case. ER 382-83,

559-60, 918-19. In addition to proving the historical

actual hourly rates for each timekeeper, Schneider

proved that these actual hourly rates were well within the

normal and reasonable range of hourly rates in the

California legal market (which was proven to be the

relevant market), including San Diego. ER 382-85, 400,

407, 411, 560, 569, 572, 766, 772-73, 785, 834, 1098-

1103, 1110-14, 1121-26, 1 129-31, 1135-41, 1150-51,

1153-55, 1158, 1168-70, 1376-77, 1380-89, 1397-98,

1402-05, 1407-38.

3 Twelve different timekeepers performed services on behalf

of Schneider, but the hourly rate for two of them is no longer at issue.

One of Schneider’s counsel did not have an established historical

hourly rate during the 1990-99 time period, and Schneider did not

appeal from the district court’s determination, based on a comparison

of rates charged by other lawyers, of a reasonable hourly rate for his

services. See Brief of Appellant at 19 n.5; App. 60a. As toa second

timekeeper, a paralegal, the district court accepted the requested

historical market rate of $60/hour. ER 383 47, 1075-76.

Schneider’s evidence of the actual market rates that

had historically been paid for the work of these ten

timekeepers was not controverted in the opposition to the

interim fee motion filed May 18, 1999, by the County and

Reynolds. ER 645-47, ER 672-74. Indeed, that

opposition did not even mention nine of the ten

timekeepers, much less question their customary hourly

rates or argue that the rates were unreasonable.*

Attached to the opposition were several pieces of

evidence indicating what other attorneys of varying

experience and specialization had charged in other cases.

ER 645-47, 672-74, 701-33. Much of this evidence

further buttressed the reasonableness of the hourly rates

used in Schneider’s interim fee motion. For example, this

evidence indicated that average attorney billing rates in

San Diego range between $150 to $250 per hour. ER

645-47, 672-74. The historical billing rates of three

attorneys who worked on this case, who together put in

two-thirds of the hours on this case, were at or below the

low end of this range. One was billed out at $125/hour,

one was billed out at $150/hour, and one was billed out

at $175/hour. ER 951-52. As a further example, the

evidence submitted with the fee opposition proved an

average paralegal billing rate in San Diego of $80/hour.

ER 704. The historical paralegal billing rate used in

Schneider’s fee motion was $15/hour less than that. ER

“ As revealed by the County’s own filings in this case, in

opposition to a fee motion in an earlier case the County had rebutted

the hourly rates sought in the motion by filing the declaration of a

qualified litigation attorney who had reviewed the movant’s evidence

and set forth under oath that the specific lawyers who served as

plaintiffs counsel “have never truly developed a ‘market rate,” as

“their fees are rarely paid by their clients,” and that the hourly rates

claimed in the fee motion were much greater than the hourly rates

that these specific lawyers could “command on a regular basis in the

open market.” ER 646, 710, 715-18. No such declaration was filed

in this case. Indeed, in oral argument on the fee motion in this case

counsel for the County indicated that he had not found an attorney

willing to submit a declaration critical of Schneider’s interim fee

motion. ER 1008.

559-60 47 11-13, ER 952. Even for legal research and

drafting work by law students, the fee motion requested

$85/hour, slightly above the average rate for paralegal

work proved by respondents. ER 559-60 9f 11-13.

In addition to seeking a fee award calculated using

the actual market rates that had historically been paid

for the work of these ten timekeepers, Schneider sought

an upward adjustment to these historical rates to reflect

the fact that these historical rates were predicated on

prompt payment, not payment years after the rendering

of the services. Schneider's counsel surveyed the

California legal marketplace and submitted multiple

declarations proving that during the pendency of this

case, California law firms, including San Diego law firms,

have charged and collected between 10% and 18%

annual interest for extended delay in payment. ER 408,

562-65, 570, 761-62, 1 171-74, 1377-78. To remove any

room for argument about the appropriate interest rate,

Schneider’s interim fee motion requested that the

historical rates of the ten timekeepers be adjusted

upward by 10% (uncompounded) for each year of delay in

payment, using the lowest interest rate for delay in

payment charged in the California legal marketplace. ER

562, 1171. Schneider’s evidence of the California legal

market’s interest rate for delay in payment was not

controverted with evidence of any other interest rate

actually used in the California legal market, in the

opposition to the interim fee motion filed May 18, 1999,

by the County and Reynolds. ER 658-60, 687-89.

Despite the uncontroverted evidence on Schneider’s

interim fee motion that the hourly rates sought were the

actual hourly rates historically paid for the services of

these ten timekeepers and that the delay multiplier

sought was based on the lowest interest rate actually

charged in the California legal marketplace for delay in

payment, the district court refused to award fees based

on these uncontroverted market rates.§ It slashed by

roughly half the hourly rates sought. App. 60a-74a. For

example, the customary $125/hour and $150/hour rates

for two attorneys who did much of the research and

drafting work in this case were reduced to $75/hour, see

App. 23a-25a, 67a-69a — less than the $80/hour

paralegal rate in San Diego proved by defendants’ own

evidence. ER 704. The $65/hour sought for paralegal

work, itself $15/hour below the San Diego average, was

cut to $30/hour. ER 559-60; App. 72a.

The district court likewise refused to award a delay

multiplier based on the uncontroverted evidence of the

actual interest rates for delay in payment charged in the

California marketplace. Instead of awarding 10% simple

interest from the date the services were rendered, the

lowest amount charged in California for extended delay

in payment, the district court awarded no interest for the

delay in payment for work done between 1995 and 1999;

awarded less than half the market interest rate for the

work between 1991 and 1995; and even on this work

began the running of interest not as the services were

rendered between 1991 and 1995, but only beginning in

1995. App. 29a-30a, 77a-78a.°

* Schneider repeatedly urged the district court that pursuant

to this Court’s decisions construing 42 U.S.C. § 1988 as explicated in

various circuit court decisions, this uncontroverted evidence of actual

market rates was controlling on a fee motion. See pp. 26-28, infra.

fn a final aspect of its ruling on the interim fee motion, one

not relevant to this petition, the district court granted the request of

the County and Reynolds for a downward adjustment to the lodestar

to account for the fact that Schneider did not prevail on all of the

counts in his complaint, and against all the defendants he initially

named. See ER 641-44, 668-71; App. 75a-77a. Schneider appealed

on this point but no longer contests it.

This was the sole argument made by the County and

Reynolds for a downward adjustment to the lodestar. In their

opposition to the interim fee motion filed May 17, 1999, respondents

did not argue that the lodestar was somehow too high in relation to

the actual damages recovered by Schneider. ER 635-89. Nor would

The Final Fee Motion

After granting rehearing on the interim fee motion

and issuing a revised decision, App. 34a-83a, the district

court entered final judgment. ER 1621-22. Schneider

then filed his final fee motion which covered the last year

of work on the case by Schneider’s counsel on motions

that had resulted in the recovery from respondents of an

additional $339,762.84.” Fed. R. Civ. P. 54(d)(2) provides

such an argument have been tenable here. The evidence shows that

Schneider was “confronted by two separate teams of defense lawyers,

each of whom aggressively defended the case,” working “with

relatively unlimited resources,” and offering “no opportunities to cut

the litigation short.” ER 766. In particular, Reynolds was

represented by a San Diego law firm that “has earned the reputation

of being a relentless opponent” which “aggressively litigates every

issue in a case.” ER 407-08 410. As the Seventh Circuit has noted,

where a Section 1988 plaintiff is confronted by “tenacious resistence”

in a case involving relatively minor stakes, as long as “the exertion on

the plaintiff's side” is not “ynreasonable in relation to the defense,” an

award of attorneys’ fee greater than the judgment is permissible.

Barrow v. Falck, 977 F.2d 1100, 1104 (7th Cir. 1992) (Easterbrook,

J.). “Although private parties looking only to their own interests

would not invest more in litigation than the stakes of the case,” in the

area of constitutional torts a different approach is needed to ensure

that people cannot “get away with small offenses. ... Section 1988

helps to discourage petty tyranny. Awarding the full cost of litigation,

which looks excessive in the single case, is sensible because it aids in

the enforcement of rules of law.” Id. at 1103-04. In Barrow the

Seventh Circuit indicated that an otherwise justified fee award of

eleven times the actual damages recovered would be permissible. Id.

Schneider’s interim fee motion requested attorneys’ fees and expenses

about seven times larger than his ultimate recovery of $102,000.

’ During this last year of work Schneider’s counsel: (1) orally

argued and prevailed on a posttrial motion for prejudgment interest,

adding $34,145.54 to the jury’s fair market value award of

$67,795.50, ER 892-96; (2) prevailed on the interim fee motion,

winning another $278,984.76, ER 1065-66, against an opposition so

tenacious that respondents suggested that Schneider should receive

only 5% of the fees and expenses sought, ER 1867; and (3) prevailed

on a motion for reconsideration which resulted in the district court

that a motion for attorneys’ fees and expenses “must be

filed and served no later than 14 days after entry of

judgment.” Schneider’s final fee motion was timely

served and filed on April 13, 2000, fourteen days after

final judgment was entered on March 30, 2000.®

The final fee motion was supported by declarations

documenting the substantial attorney time and expenses

incurred on the case in the last year of work on the case,

including a detailed expert declaration demonstrating

that the time and expenses incurred were reasonable,

and in particular that the time initially spent on the

interim fee motion was extremely modest and only grew

as needed to respond to objections and discovery

requests raised against the interim fee motion. ER

1628-80, 1842-1925. (The expert affidavit, which

appears at ER 1842-55, is reprinted at App. 103a-114a)

The County and Reynolds submitted no evidence

controverting the reasonableness of the time or expenses

for the work covered by the final fee motion, ER 1736-

1833, save for evidence relating to less than twelve hours

expended on a procedural matter, the claim to which

Schneider then dropped. ER 1638-40, 1758-60, 1807-34,

1858 n.1.°

adding another $26,632.54 to the fee award on the interim motion,

for a total of $305,617.30 on the interim fee motion. ER 1579.

* Without discussing the deadline set in Fed. R. Civ. P.

54(d)(2)(B) or Schneider’s compliance with that deadline, the district

court suggested that Schneider’s final fee motion was somehow

untimely. App. 98a. Schneider rebutted this suggestion on appeal,

see Brief of Appellant at 4, 49, and in its decision below the court of

appeals did not question the timeliness of the final fee motion and

reached the merits of the issues raised by Schneider. App. la-5a.

* Counsel for the County and Reynolds did assert in the legal

memorandum they filed that the hours and expenses claimed

appeared to be excessive or vague. E.g., ER 1745-46, 1749, 1752.

And they objected in advance to the submission of any further

evidence with Schneider’s reply brief on the final fee motion. ER

1760. In response, Schneider pointed out that the County and

Despite the uncontroverted evidence supporting the

final fee motion and the fact that this work resulted in

Schneider obtaining $339,762.84 in additional relief, the

district court refused to award anything for the hundreds

of hours of work, and tens of thousands of dollars of

expenses, that Schneider’s counsel had proved they had

reasonably incurred on the case after March 29, 1999.

Even before the final fee motion was filed and the district

court knew the evidentiary basis of the final fee motion,

it ruled out any fees for work done after March 29, 1999,

at the close of its order granting reconsideration of the

interim fee motion and awarding an extra $26,632.54 in

fees. App. 83a (“the Court declines to award any fees for

the motion for attorneys fees and expenses or the motion

for reconsideration.”).*° Once the final fee motion was

Reynolds had “wholly failed to meet their burden, in response to

plaintiff's motion, to present evidence disproving the reasonableness

of the time and expenses actually incurred by plaintiffs counsel in

the case.” In an abundance of caution, they also submitted 85 pages

of evidence rebutting these assertions. ER 1842-1925. This

additional evidence was entirely proper because in his moving papers,

under Fed. R. Civ. P.54(d)(2) Schneider was only required to “state the

amount or provide a fair estimate of the amount sought.” The rule

“does not require that the motion be supported at the time of filing

with the evidentiary material bearing on the fees,” although “[t}his

material must of course be submitted in due course, according to

such schedule as the court may direct in light of the circumstances

of the case.” . Advisory Committee Notes to Rule 54(d). Rule

54(d)(2)(C) requires that a district court “shall afford an opportunity

for adversary submissions” on the “request of a party,” a procedural

vehicle that “assures the parties of an opportunity to make an

appropriate presentation with respect to issues involving the

evaluation of legal services.” Advisory Committee Notes. The County

and Reynolds made no request for adversary submissions; they

simply filed opposition papers asserting without evidentiary support

that the hours and expenses were unreasonable. ER 1736-61.

ascertained that $8,400 of its interim fee award actually covered some

initial work on the interim fee motion done before March 29, 1999,

so it corrected its position to indicate that this amount was all it

filed, despite detailed, uncontroverted expert and other

testimony proving that all the hours and expenses

claimed were reasonable, the district court criticized the

number of hours expended in the final year as

unreasonable and refused to award anything for the

549.2 hours of work done by Schneider’s cotinsel during

the last year of the case, or even to reimburse Schneider’s

counsel for any of the $33,119.65 in out-of-pocket

expenses incurred during the last year. See ER 1628-30,

1888, 1945-50, 1934-43.

The Court of Appeals’ Decision

Schneider appealed from the district court’s

disposition of his fee motions. He specifically urged the

Ninth Circuit to follow the Third and Seventh Circuit

decisions that have interpreted Section 1988 and this

Court’s decisions as barring a district court from

disregarding uncontroverted evidence on the actual

historical market rates of the timekeepers’ services, on

the appropriate multiplier to adjust for delay, and on the

actual number of hours reasonably expended on a

matter. See Brief of Appellant at 33-34, 36-38, 45-49;

Reply Brief of Appellant at 5-7. The panel rejected these

arguments as inconsistent with Ninth Circuit precedent,

a point that the panel regarded as so clear that it marked

its decision not for publication.

Citing Barjon v. Dalton, 132 F.3d 496, 502 (9th Cir.

1997), cert. denied, 525 U.S. 827 (1998), the panel

rejected as “wrong as a matter of law” Schneider’s

contention that the “rates customarily billed by

Schneider’s counsel should be determinative of the

court’s finding with respect to hourly rates.” App. 3a. It

would allow for litigation of fees. App. 99a. But the record is clear

that the district court awarded nothing in fees or expenses for the

year of work after March 29, 1999, during which Schneider prevailed

on three motions and won an additional $339,762.84, despite

uncontroverted evidence that the fees and expenses were reasonable.

rs 2 re,

Pe we MOR re

also rejected Schneider’s related argument that the

district court erred in refusing to adjust the hourly rates

upwards by 10% per year of delay in payment, to match

the lowest interest rate charged in the California legal

market for delay in payment. App. 3a-4a. Barjon, the

most recent Ninth Circuit decision relied on by the panel,

specifically rejected one of the leading Seventh Circuit

decisions relied on by Schneider on the use of an

attorney’s customary billing rate to establish market

value. 132 F.3d at 501 (rejecting Judge Easterbrook’s

decision in Gusman v. Unisys Corp., 986 F.2d 1146, 1149

(7th Cir. 1993)) (see p. 22, infra).

Likewise, with respect to the district court’s refusal

to award anything on the final fee motion for the

substantial time and expenses incurred by Schneider’s

counsel in the year following March 29, 1999, during

which Schneider won an additional $339,762.8430 in

prejudgment interest and attorneys’ fees, the panel

rejected Schneider’s argument that it should adopt the

approach of the Third Circuit under which

“uncontroverted sworn declarations proving that all the

time and expenses were reasonable” are controlling.

Brief of Appellant at 49. Under the law of the Ninth

Circuit, the panel held, the district court was “well within

its discretion” to reject Schneider’s final fee motion in its

entirety even though it was supported by several sworn

declarations and no evidence was submitted by the

County or Reynolds in opposition. App. 4a-Sa.

Schneider timely filed a petition for panel rehearing

or rehearing en banc, urging the Ninth Circuit to bring its

Section 1988 jurisprudence into conformance with this

Court’s precedents and with holdings of the Third and

Seventh Circuits. On May 16, 2002, the rehearing

petition was denied. App. 6a.

REASONS FOR GRANTING THE WRIT

This Court should grant certiorari to resolve the

existing circuit split between the Ninth Circuit and

several other circuits over whether, in ruling on a motion

for Section 1988 attorneys’ fees, a district court may

disregard uncontroverted evidence on the actual

historical market rates of the timekeepers’ services and

on the actual number of hours reasonably expended on

the matter. By granting certiorari this Court can bring

consistency to an important area of Section 1988 fee

litigation and reinforce its past rulings emphasizing the

objective, market-oriented, record-based nature of the

“lodestar” determination, thereby promoting greater

efficiency and predictability in fee litigation nationwide.

1. 42 U.S.C. § 1988(b) provides for “a prevailing

party” such as Schneider to receive “a reasonable

attorney’s fee as part of the costs.” In enacting Section

1988, Congress sought to enhance the ability of

prospective civil rights plaintiffs to find high-quality

counsel to represent them by offering compensation

reflecting market conditions prevalent in other areas of

complex litigation, not the lower, second-class

compensation that had historically been awarded for civil

rights work under previous judge-made law. As noted in

the Senate Report on Section 1988, Congress “intended

that the amount of fees awarded . . . be governed by the

same standards which prevail in other types of equally

complex Federal litigation, such as antitrust case[s], and

not be reduced because the rights involved may be

nonpecuniary in nature.” Hensley v. Eckerhart, 461 U.S.

424, 430 n.3 (1983) (quoting S. Rep. No. 94-1011, p. 6

(1976)) (citation omitted). See also Samuel R. Berger,

Court Awarded Attorneys’ Fees: What is “Reasonable”?,

126 U. Pa. L. Rev. 281, 290, 293-94, 300, 306-15, 321-24

(1977); Charles Silver, Unloading the Lodestar: Toward a

New Fee Award Procedure, 70 Tex. L. Rev. 865, 874-77,

897, 923-24, 929-40 (1992).

Initially under Section 1988, some lower courts

determined the “reasonable” amount of fees to which a

prevailing party was entitled based on a subjective

weighing of twelve factors identified in the Fifth Circuit’s

influential opinion in Johnson v. Georgia Highway

Express, Inc., 488 F.2d 714, 717-19 (Sth Cir. 1974). See

Gisbrecht v. Barnhart, 122 S. Ct. 1817, 1824-25 (2002).

Beginning in Hensley, this Court has required the

uniform use of the “lodestar” method, which is a more

“objective basis” for determining a reasonable fee, one

predicated on “the number of hours reasonably expended

on the litigation multiplied by a reasonable hourly rate.”

461 U.S. at 433. See also Gisbrecht, 122 S. Ct. at 1824

(sketching the development of the lodestar method “as an

objective measure of a lawyer’s labor”). For the past two

decades “‘the “lodestar” figure has, as its name suggests,

become the guiding light of [this Court’s] fee-shifting

jurisprudence.” Jd. at 1825 (quoting Burlington v. Dague,

505 U.S. 557, 562 (1992)).

Three aspects of this Court’s decisions on the

lodestar method are especially relevant to the issue in

this case. First, the whole point of using the lodestar

method is to limit the relevance of judicial subjectivity.

This Court mandated its use because “[sJetting attorneys’

fees by reference to a series of sometimes subjective

factors placed unlimited discretion in trial judges and

produced disparate results.” Pennsylvania v. Delaware

Valley Citizens’ Council for Clean Air, 478 U.S. 546, 563

(1986). The lodestar method “provide[s] a more analytical

framework for lower courts to follow than the unguided

factors’ approach provided by Johnson.” Id. By

narrowing judicial discretion through its use of “an

objective basis” for calculating fees, the lodestar method

also helps ensure that a “request for attorneys’ fees” does

not “result in a second major litigation,” Hensley, 461

U.S. at 433, 437, thereby saving substantial transaction

costs across a wide range of cases.

Second, and also narrowing judicial discretion, this

Court has “consistently looked to the marketplace as its]

guide to what is reasonable,” so that the focus under the

lodestar analysis is whether the hourly rates, and hours

claimed “are consistent with market rates and practices.”

Missouri v. Jenkins, 491 U.S. 274, 285, 287 (1989). Thus,

this Court has “repeatedly stressed that attorney’s fees

awarded under [Section 1988] are to be based on market

rates for the services rendered.” Id. at 283. The same is

true with regard to the upward adjustment of market

rates to account for delay in payment, given that

“compensation received several years after the services

were rendered — as it frequently is in complex civil rights

litigation — is not equivalent to the same dollar amount

received reasonably promptly as the legal services are

performed, as would normally be the case with private

billings.” Id. This market reality warrants “adjusting the

fee based on historical rates to reflect its present value”

and thereby offset “the delay factor.” Pennsylvania v.

Delaware Valley Citizens’ Council for Clean Air, 483 U.S.

711, 716 (1987). Likewise, as to hours claimed, this

Court has indicated that to match market practices

“counsel for prevailing parties should be paid, as is

traditional with attorneys compensated by a fee-paying

client, “for all time reasonably expended on a matter.””

Blanchard v. Bergeron, 489 U.S. 87, 91 (1989) (quoting S.

Rep. No. 94-1011, p. 6 (1976)) (citation omitted).

Third, and also narrowing judicial discretion, this

Court has directed that determinations of the market rate

for services, and whether the hours claimed are

reasonable given market practices, are to be based on

record evidence. In Blum v. Stenson, 465 U.S. 886 (1984),

this Court made clear that “the burden is on the fee

applicant to produce satisfactory evidence” in support of

the fees requested, but that when “the applicant for a fee

has carried his burden of showing that the claimed rate

and number of hours are reasonable, the resulting

product is presumed to be the reasonable fee

contemplated by § 1988.” Id. at 896 n.11, 897. Once the

movant’s burden has been met, the burden shifts to the

fee opponent to controvert that evidence if it objects to

the grant of the fee motion in full. As this Court noted

with regard to the particular fee motion involved in Blum,

the defendant’s failure “to submit to the District Court

any evidence challenging the accuracy and

reasonableness of the hours charged, . . . or the facts

asserted in the affidavits submitted by [plaintiff's]

counsel” meant that defendant had “waived her right to

an evidentiary hearing in the District Court,” as no “facts

are disputed . . . [i]n view of the trial strategy she chose.”

Id. at 892 n.5.

2. Observing these simple principles for applying the

lodestar method — limit judicial subjectivity, replicate

market conditions, and base decisions on record evidence

— several circuits have concluded without difficulty that

where a movant’s evidence of the reasonable market rate

for services or of the reasonable number of hours actually

spent on a case consistent with market practices is |

uncontroverted, the district judge should not disregard |

this evidence and substitute his or her subjective view of |

what award is “reasonable.” ii

Perhaps the leading decision is that of the Third |

Circuit in Cunningham v. City of McKeesport, 753 F.2d

262, 265-69 (3d Cir. 1985) (Gibbons, J.), vacated on other

grounds, 478 U.S. 1015 (1986), reinstated, 807 F.2d 49

(3d Cir. 1986) (Becker, J.), cert. denied, 481 U.S. 1049

(1987). In Cunningham, the district court — like the

district court in this case — refused to calculate the

lodestar using the usual billing rate of the plaintiff's lead

attorney, which was established through uncontroverted

evidence. Instead, the district court slashed that rate in

half, from $100/hour to $50/hour. Id. at 265-66. The

district court in Cunningham — like the district court in

this case on the final fee motion — also refused to award

the full number of hours that the plaintiff had proved,

through uncontroverted evidence, were actually and

reasonably spent on the case. Instead, the district court

cut the hours by a third, from 326 hours to 219 hours.

Id. Like the district court in this case, the district court

in Cunningham awarded less than the full hourly rate,

and less than the full number of hours proven, even

though the defendants “filed no affidavits in opposition to

the motion” and “did not seek an opportunity to cross-

examine [the lead plaintiff's attorney] on his affidavit,” so

that “no challenge was made to the accuracy” of the

affidavit. Id. at 265.

Applying this Court’s precedents, the Third Circuit

reversed and, without the need for a remand, ordered

that the full amount sought on the uncontroverted fee

motion be granted. Id. at 269. It explained that in

statutory fee cases which are “genuinely adversarial” (as

compared with, for example, fund in court cases or

bankruptcy cases), “when an opposing party has been

afforded the opportunity” to present evidence in

opposition to a fee motion, “and declines to do so, no

reason occurs to us for permitting the trial court to

disregard uncontested affidavits filed by a fee applicant.”

Id. at 267. With regard to the hours claimed, the Third

Circuit held that unless the district court “has personal

knowledge” that certain hours “were not in fact expended

on the case,” it could not reject the hours proved up ina

sworn affidavit, as “there must be a record basis for the

court’s rulings.” Id. Likewise, the court held that when

an attorney submits an affidavit stating the rate “that his

firm normally bills his time at,” and that affidavit is

uncontroverted, even where the district court believes

that the attorney “is relatively inexperienced” the

uncontroverted affidavit controls the ultimately “factual

question” of the market value of the services in question.

Id. at 268.

At a later stage of the case, the Third Circuit

summed up the approach of its Cunningham decision by

stating that it is “inappropriate for a district court in an

adversarial system to reject uncontradicted sworn

affidavits because of reasons not raised by opposing

counsel and on the basis of facts ‘of which the trial court

has no personal knowledge.” Cunningham v. City of

McKeesport, 807 F.2d at 53 (Becker, J.) (quoting

ee ee ee

ee ik,

Cunningham, 753 F.2d at 267). See also Smith v.

Philadelphia Housing Authority, 107 F.3d 223, 225 (3d Cir.

1997) (once the plaintiff has met the burden of proving

hourly rates, the “defendant may contest that prima facie

case only with appropriate record evidence,” and “[i]n the

absence of such evidence, the plaintiff must be awarded

attorney’s fees at her requested rate”); Coleman v. Kaye,

87 F.3d 1491, 1510 (3d Cir. 1996) (“a district court may

not set attorneys’ fees based upon a generalized sense of

what is customary or proper, but rather must rely upon

the record.”).

The Third Circuit applies this simple, sensible rule

derived from this Court’s precedents not only to the

matter of historical billing rates, but to how those billing

rates are adjusted upward to compensate attorneys for

delay between their rendering of services and their

compensation at historical rates which are premised on

prompt payment. In Rode v. Dellarciprete, 892 F.2d 1177

(3d Cir. 1990), the fee opponent — like the fee opponents

in this case — did not submit any evidence to controvert

the fee movant’s method of computing delay

compensation. The Third Circuit therefore held that the

district court committed reversible error in denying the

upward adjustment sought by the movant to compensate

for the delay. Id. at 1188-89.

The Seventh Circuit likewise has a consistent line of

decisions emphasizing the objective, market-oriented,

record-based analysis that district courts must engage in

under the lodestar method required by this Court. Its

approach allows for hourly rates to be set based: on the

most accurate, objective evidence available, advancing

both the interest of efficiency (the actual market rates

can be readily proved) and the interest of fairness (the fee

opponent pays no more than the ordinary cost of the

timekeepers’ services). Chief Judge Posner emphasized

the point as follows, in a case where the district judge

refused to award fees using the attorneys’ customary

billing rate, instead capping all rates at $175/hour:

_ 22

It is apparent what the district judge’s

mistake was. He thought he knew the value of

the class lawyers’ legal services better than the

market did. What the market valued at $350 he

thought worth only half as much. He may have

been right in some ethical or philosophical sense

of “value” but it is not the function of judges in

fee litigation to determine the equivalent of the -

medieval just price. It is to determine what the

lawyer would receive if he were selling his

services in the market rather than being paid by

court order. '

In re Continental Illinois Sec. Litigation, 962 F.2d 566, 568

(7th Cir. 1992). See also Balcor Real Estate Holdings, Inc.

v. Walentas-Phoenix Corp., 73 F.3d 150, 153 (7th Cir.

1996) (Easterbrook, J.) (“Courts award fees at the market

rate, and the best evidence of the market value of legal

services_is what people pay for it. Indeed, this is not

‘evidence’ about market value; it is market value.”);

Gusman v. Unisys Corp., 986 F.2d 1146, 1150 (7th Cir.

1993) (“the best measure of the cost of an attorney’s time

is what that attorney could earn from paying clients”);

Pressley v. Haeger, 977 F.2d 295, 299 (7th Cir. 1992)

(Easterbrook, J.) (“Fee litigation under § 1988 depends on

what the market rate is rather than what litigants and

judges think it ought to be,” and where the

uncontroverted record evidence establishes a market rate

for a given timekeeper, “§ 1988 requires the judge to use

that rate”).

It is important to note that the Seventh Circuit’s

approach is neither pro-plaintiff nor pro-defendant, but

evenhanded and sensible, as the court has applied this

approach to prohibit a district court from granting

counsel for a civil rights plaintiff a “market rate” higher

than the rate he regularly charges private clients in

actually “selling his services in the market.” Barrow v.

Falck, 977 F.2d 1100, 1104-05 (7th Cir. 1992)

(Easterbrook, J.). See also Shakopee Mdewankton Sioux

AEBS POET OLN AII ESE AME Oe

DOR Fapeiscivtenebdmbaaseaid

Community v. City of Prior Lake, 771 F.2d 1153, 1160-61

(8th Cir. 1985), cert. denied, 475 U.S. 1011 (1986) (same).

District judges in the Ninth Circuit are not similarly

constrained. E.g., Davis v. San Francisco, 976 F.2d 1536,

1548 (9th Cir. 1992) (holding that district court’s award

of billing rates that “exceeded the rates charged by

several of the [plaintiffs’] attorneys in their private

practices” was not an abuse of discretion).

The Third and Seventh Circuits are the circuit courts

most insistent on constraining the discretion of district

judges where the record is uncontroverted concerning

market rates and the number of hours actually and

reasonably billed in accord with market practices.

However, several additional circuits have issued decisions

that differ from the approach of the Ninth Circuit. For

example, the Eighth Circuit has observed, explicitly

agreeing with the Seventh Circuit decision in Gusman

which the Ninth Circuit has explicitly rejected (see p. 15,

supra), as follows:

Fee awards must be structured so that

attorneys of quality and experience with other

profitable demands upon their time will not need

to sacrifice income available in alternative

enterprises in order to effect a public policy

intended to protect all citizens. In other words,

“the market rate of legal time is the opportunity

cost of that time, the income foregone by

representing this plaintiff.” Any other rule

would relegate civil rights enforcement (and the

law that results) to those lawyers with below-

market billing rates. The rates for these lawyers

are usually below market for a reason.

Casey v. City of Cabool, 12 F.3d 799, 805 (8th Cir. 1993)

(quoting Gusman, supra, 986 F.2d at 1149). At least one

decision of the First Circuit has sounded this theme.

Maceira v. Pagan, 698 F.2d 38, 40 (1st Cir. 1983) (Breyer,

J.) (“the ‘prevailing’ rate in the community’ for work

performed by an outside specialist (where that outside

specialist is reasonable) is most likely to be that outside

specialist’s ordinary rate. If courts (without cause) award

fees at less than that rate, they will tend to prevent those

in smaller communities from obtaining the experienced

legal counsel they may need, contrary to the policy

behind awards of attorneys’ fees to prevailing parties.”).

It appears that the Fifth and Sixth Circuits afford a scope

of discretion to district judges on market billing rates

somewhere between the narrow discretion afforded by the

Third and Seventh Circuits and the vast discretion

afforded by the Ninth Circuit. £.g., Islamic Center of

Mississippi v. Starkville, 876 F.2d 465, 469 (Sth Cir.

1989); Kelley v. Metroplitan County Board of Education,

773 F.2d 677, 682-83 (6th Cir. 1985) (en banc), cert.

denied, 474 U.S. 1083 (1986). Although a comprehensive

review of the law of each circuit might well reveal further

confusion over this issue, the differing approaches among

the several circuits sketched above are sufficient reason

for this Court to grant review to clarify this important

aspect of Section 1988 litigation.

3. As set forth above, the law of the Ninth Circuit

affords district judges vast discretion, when faced with

record evidence on market rates and the number of hours

actually and reasonably billed in accord with market

practices, to disregard that record evidence and

substitute their subjective views of what fee award strikes

them as reasonable. That approach is inconsistent with

the lodestar jurisprudence of this Court during the past

two decades and with the decisions of other circuits. The

procedural framework for the litigation of Section 1988

attorneys’ fees is an important matter, one of interest to

civil rights plaintiffs and defendants alike. The basic

rules in this area should not vary depending on the

circuit in which a party is litigating nor, within the Ninth

Circuit, depending on which district judge is assigned to

the case. In denying en banc review in this case, the

Ninth Circuit rejected Schneider’s specific request that it

overrule its decision in Barjon v. Dalton, 132 F.3d 496,

502 (9th Cir. 1997), cert. denied, 525 U.S. 827 (1998), in

order to bring its law in this area into line with this

Court’s precedents and the approach of the Third and

Seventh Circuits. See Petition for Panel Rehearing and

Rehearing En Banc at 2, 10-11, 13-16. A grant of

certiorari is needed to correct the Ninth Circuit’s

mistaken approach to Section 1988 litigation and the

confusion in the lower courts generally (which would

warrant a grant of certiorari even if this Court were

inclined to view the Ninth Circuit’s approach as correct).

The Section 1988 issue on which the circuits are

divided is a legal issue that can be answered without

extensive reference to the facts of the particular case in

which this Court grants certiorari to resolve the issue.

This Court should therefore grant review of the issue

using the first available case. However, if the factual

record of the particular case is of interest, two aspects of

this case make it a particularly desirable vehicle for

review of the issue.

First, it is clear from the record that in the materials

Schneider filed with his interim fee motion, he met his

burden of proving that his lodestar request was

predicated on the same hourly market rates at which the

services of the ten timekeepers were historically billed

and collected by Schneider’s counsel on other cases

between 1990 and 1999, and that Schneider sought an

upward adjustment to these rates to reflect the delay in

payment using the lowest interest rate historically

charged in the California legal market for extended delay

in payment, 10% simple interest. See pp. 7-8, supra. Yet

the County and Reynolds elected to submit no evidence

of their own to rebut either point — indeed, their counsel

admitted on the record that he had not found an attorney

willing to controvert the evidence submitted with

Schneider’s interim fee motion. See note 4, supra.

Likewise, the County and Reynolds left the evidence

submitted by Schneider with his final fee motion

uncontroverted by any evidence of their own. See pp. 12-

13, supra. Thus, with respect to the most relevant

factual point, this case has a straightforward record

similar to the record this Court considered in Blum, 465

U.S. at 892 n.5. See pp. 18-19, supra.

Second, it is clear from the record that here the

district court was repeatedly asked by Schneider to

confine itself to the record evidence and arguments

submitted by the parties, and that Schneider invoked this

Court’s precedents, both standing alone and as

explicated by decisions of the Third and Seventh Circuits,

in urging the district court that because the County and

Reynolds had left his evidence uncontroverted the district

court should simply grant the relief requested. E.g., ER

545-46, 549, 750-51, 907-08 992-4, 979, 981-82, 988-91,

996-97, 1050 95 &n.1, 1091-95, 1097-1108, 1161-76.

Indeed, Schneider argued that it would violate

procedural due process and the constraints of Article III

adjudication for the district court to do otherwise. ER

1050 95 &n.1. The district court’s rejection of these

arguments and the wide-ranging scrutiny it subsequently

gave Schneider’s uncontroverted fee motions illustrates

the virtually unlimited discretion which district judges in

the Ninth Circuit feel free to exercise on the basis of

subjective factors that are the very thing that the lodestar

method was adopted to supplant. See pp. 17-19, supra.

For example, during the oral argument on the

interim fee motion, Schneider’s counsel argued that the

district court was required to limit itself to the arguments

and evidence submitted by Schneider and the County

and Reynolds. ER 979, 981-82, 988-90. The district

court expressed the view that its task of deciding on a

“reasonable” fee trumped Schneider’s arguments on the

requirement of an objective, market-oriented, record-

based analysis. Addressing defendants, the district court

indicated it understood but was rejecting the argument

of Schneider’s counsel

pA SADC ARORA MRE LA BED PENROSE I Te 3B OM >

that since you didn’t come up with a declaration,

that the Court can’t independently challenge any

of the reasonableness of the fees. I disagree

with that, because | think it’s the Court that. .

. makes the award and the Court is going to

award reasonable attorneys’ fees, not simply just

the attorneys’ fees that the parties have

requested.

ER 986.

The extraordinary scope of the discretion the district

court was exercising was made even clearer later in the

oral argument, when the district court raised a new fee

objection on its own initiative. Schneider’s counsel

pointed out that “defendants have not objected on that

basis,” and that if they had so objected Schneider would

have responded with additional evidence. ER 989-90.

The district court responded:

The Court is raising it sua sponte, and the Court

is giving you an opportunity to litigate all of

these matters in a reasonable fashion today,

because I am putting you on notice that the

Court has problems with your submissions

based on the reasonableness of the attorneys’

rates, on the documentation of the

contemporaneous billing records, on the number

of hours, on the fact of the interest, on your rate

for law students — $85 an hour the Court finds

to be excessive and unreasonable. And so the

Court is putting you on notice that it is raising

these at the trial court level, and so it will be an

issue and the Court reserves the right to

disallow any fees that the Court believes are

excessive and unwarranted....

ER 990.

In response, Schneider’s counsel urged the district

court to read the Third Circuit’s leading decision in

Cunningham, “which says that basically courts are not to

. .. come up with their own objections if the defendants

_did not raise them and have not presented evidence.” ER

991. See also ER 991 (noting that without a declaration,

defendants “have no evidence to contest the

reasonableness [of] the time it took to perform various

tasks, whether the task should have been performed, the

reasonableness of the hourly rates of the people who

worked on it”); ER 996-97 (noting that “defendant’s

opposition didn’t put in an affidavit disagreeing with us”

on the applicable market interest rate for delay: “That is

ultimately an evidentiary matter, how the market will

handle a certain delay, and we think the evidence is

uncontradicted, that at least 10 percent is a reasonable

number.”).

The fact that these objections fell on deaf ears and

the district court subsequently rejected much of

Schneider’s interim fee motion, and all of Schneider’s

final fee motion — even though the record evidence

presented with these motions was left uncontroverted —

illustrates the degree to which the Ninth Circuit has

fallen out of step with this Court and other circuits.

Despite this Court’s care during the past two decades to

emphasize that the lodestar method is an objective,

market-oriented, record-based approach to the efficient

litigation of attorneys’ fees motions, the district court

handled this case in a manner alien to that approach. It

specifically asserted “the right to disallow any fees that

the Court believes are excessive and unwarranted.” ER

990. The Ninth Circuit’s affirmance illustrates the vast

discretion that exists under Ninth Circuit law for a

district judge to rule either against a plaintiff or for a

plaintiff (see pp. 22-23, supra) on a fee motion based on

his or her subjective assessment of what seems

warranted. Although this Court need not delve into the

factual details of this case to decide the issue presented,

the record contains ample additional support for a grant

of certiorari and confirms that this case would be a

suitable vehicle for deciding that issue.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

KENNETH CHESEBRO.

8024 Mesa Drive, # 173

Austin, TX 78731

(512) 565-7244

Counsel for Petitioner

August 14, 2002

APPENDIX CONTENTS

PAGE:

Court of Appeals’ Memorandum Opinion

ee En oa iene baeeasteebeeaee la

Court of Appeals’ Order

Denying Rehearing Filed May 16, 2002 ......... 6a

District Court’s Order Granting Plaintiff's

Motion for Attorney’s Fees Filed

September 29, 1999 (ER 1065-88) ............. 7a

District Court’s Order Granting in Part

Plaintiffs Motion for Reconsideration

Filed March 16, 2000 (ER 1579-1620) ......... 34a

District Court’s Order Denying Plaintiff's

Motion for Reconsideration of Court’s

March 16, 2000 Order (Docket # 338) and

Denying Plaintiffs Request for an

Additional Award of Attorneys’ Fees and

Expenses (Docket # 334) Filed

June 28, 2000 (ER 1930-43) ............000- 84a

Declaration of Steven L. Mayer in Support of

Plaintiffs Motion for Award of Attorney’s Fees

and Expenses Incurred After March 20, 1999,

Filed May 11, 2000 (ER 1842-55)............ 103a

FILED

MAR 21 2002

CATHY A. CATTERSON, CLERK

U.8. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOUIS SCHNEIDER,

Plaintiff-Appellant,

Nos. 00-55798,

vs. 00-56329

and REYBRO, INC., CV-90-1738-H

a California corpora-

tion, dba Quality MEMORANDUM

)

COUNTY OF SAN DIEGO, ) D.C. No.

Auto Recycling, )

Defendant.

Appeal from the United States District Court

for the Southern District of California

Marilyn L. Huff, Chief District Judge, Presiding

Argued and Submitted June 12, 2001

Pasadena, California

BEFORE: WARDLAW, PAEZ, and TALLMAN,

Circuit Judges

* This disposition is not appropriate for publication

and may not be cited to or by the courts of this circuit

except as may be provided by Ninth Circuit Rule 36-3.

In these consolidated appeals, Louis Schneider

challenges the district court’s award of fees and costs

pursuant to 42 U.S.C. § 1988. Schneider also requests

[2] fees for these appeals. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

After over a year of fee litigation, the district court

awarded Schneider $ 305,617.30 out of his requested

$707,375.74 in attorney’s fees and expenses in a case

where the total amount of the underlying judgment was

$67,795.50. In cases brought under 42 U.S.C. § 1988(b),

“the court, in its discretion, may allow the prevailing

party, other than the United States, a reasonable

attorney’s fee ....” 42 U.S.C. § 1988(b). The district court

followed the well-established procedure for determining

reasonableness by analyzing the lodestar for those fees.

See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). We

review the award for an abuse of discretion, noting that

the district court may “in rare cases ... make upward or

downward adjustments to the presumptively reasonable

lodestar” on the basis of a series [8] of factors,

including the delay in payment and the plaintiff's overall

success in pursuing the litigation. Gates v. Deukmejian,

987 F.2d 1392, 1396, 1402 (9th Cir. 1993). Moreover,

the district court has “considerable discretion in

determining what attorney’s fee is ‘reasonable’ under the

circumstances of [the] case.” Schwarz v. Sec’y of Health

& Human Servs., 73 F.3d 895, 901 (9th Cir. 1995).

Schneider contends that the district court legally

erred in five ways, each of which undermines the award:

(1) deciding the fee motion based on its own sua sponte

objections; (2) adopting a “fair” hourly rate for various

timekeepers’ services, rather than using Schneider’s

proposed market rates; (3) failing to award Schneider a

full ten percent upward adjustment to account for delay

in payment; (4) improperly adjusting the lodestar

downward to reflect Schneider’s limited success; and (5)

failing to award fees incurred for the litigation of the fee

petition (“fees-on-fees”). We conclude that the district

court did not abuse its discretion in finding that, under

the totality of the circumstances and utilizing the factors

set forth in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67,

70 (9th Cir. 1975),* [4] a fair and reasonable award of

fees and costs is $ 305,617.30.

Schneider’s first argument, that the district court

sua sponte made and ruled upon its own objections to

law student rates, contemporaneous billing records, the

rates at which Schneider paid contract lawyers and

paralegals, and correspondence between himself and his

lawyer regarding billing, is factually incorrect. In fact, the

County repeatedly made oral and written objections to

these aspects of the claimed attorney’s fees. His second

argument, that rates customarily billed by Schneider’s

counsel should be determinative of the court’s finding

with respect to hourly rates, is wrong as a matter of law.

See Barjon v. Dalton, 132 F.3d 496, 502 (9th Cir. 1997)

(consideration of attorney’s [5] expertise and experience

in application of the prevailing rate for similarly qualified

local counsel is well-established approach in the Ninth

Circuit); Chalmers v. City of Los Angeles, 796 F.2d 1205,

1210 (9th Cir. 1986) (“Determination of a reasonable

hourly rate is not made by reference to rates actually

charged the prevailing party.”). Because the district court

did not clearly err in finding that local counsel was

available, willing, and able to handle this case, it did not

abuse its discretion in applying rates comparable to the

rates charged for similar services in the San Diego legal

community.

Schneider’s third argument, that the district court

abused its discretion by refusing to adjust the lodestar

upward to account for delay in payment of fees by a ten

percent rate of interest, is both factually and legally

erroneous. The district court in fact awarded a 4.545%

rate of interest for work performed in the early stages of

' Although we have noted that the Kerr approach is

“disfavored,” the district court’s reliance upon it is harmless

error in view of its correct application of subsequent cases.

Corder v. Gates, 947 F.2d 374, 378 (9th Cir. 1991).

litigation and awarded current rates of interest for work

performed at later stages. It is not an abuse of discretion

to utilize different methods in compensating for delay at

different stages of the litigation. See Chem. Bank v. City

of Seattle (In Re Washington Pub. Power Supply Sys. Sec.),

19 F.3d 1291, 1305 (9th Cir. 1994) [6] (a district court

is “free to use either current rates for attorneys of

comparable ability or experience or historical rates

coupled with a prime rate enhancement” for different

stages of the litigation).

Nor did the district court abuse its discretion in

adjusting the lodestar downward based on Schneider’s

limited success on the merits of the litigation. Hensley,

461 U.S. at 434. Schneider failed on several of his

original claims, did not prevail against ten of the twelve

original defendants, and did not recover a large portion

of his originally claimed damages, including punitive

damages, damages for emotional distress, and lost

income and profits. These claims involved a common

core of facts and were based on legal theories related to

the claims upon which Schneider succeeded. See

Hensley, 461 U.S. at 435. Moreover, the district court

reduced the lodestar for the first phase of the litigation

only, which was the phase in which Schneider pursued

his unsuccessful claims. This was not an abuse of its

discretion. See McGinnis v. Kentucky Fried Chicken, 51

F.3d 805, 810 (9th Cir. 1995) (ordering the district court

to “reduce the [7] attorney’s fees award so that it is

commensurate with the extent of the plaintiff's success”).

Finally, the district court was well within its

discretion to decline to award additional “fees-on-fees.”

The district court compensated Schneider for fees for the

preparation of the initial fee request in the amount of $

8,400, declining only to award fees for Schneider’s

motion to reconsider and subsequent fee litigation. The

district court did not err in finding that Schneider’s

counsel failed to minimize the hours spent in preparing

the fee petition, delegate tasks that could have been

performed by associates at a lower rate, and present all

documents relevant to the fee petition with the initial

motion. It correctly concluded that the request was

therefore unreasonable under the standards set by law,

reasoning, “to permit an award of additional fees-on-fees

in these circumstances gives parties an incentive to draw

out the fee litigation.”

As the Supreme Court has stated, “no award of fees

is ‘automatic’ .... Exorbitant, unfounded, or procedurally

defective fee applications -- like any other improper

position that may unreasonably protract proceedings --

are matters that the district [8] court can recognize and

discount.” Commissioner, INS v. Jean, 496 U.S. 154, 163

(1990). The district court had previously determined

what constituted a reasonable award; it did not abuse its

discretion in concluding that any additional amounts

would be excessive. See id. at 161-62 (fee shifting

statutes favor treating a case as an “inclusive whole”).

We share the sentiment expressed by the Seventh Circuit

in Muscare v. Quinn, 680 F.2d 42, 44 (7th Cir. 1982),

that “for rather obvious practical reasons we are loath to

disturb a ruling by a district judge on a request for

second-round attorneys’ fees.”

Finally, Schneider claims entitlement to attorney’s

fees and costs on appeal. Because Schneider did not

prevail on the merits of these appeals, we decline to

award attorney’s fees and costs. See Trevino v. Gates, 99

F.3d 911, 926 (9th Cir. 1996).

AFFIRMED.

FILED

MAY 16 2002

CATHY A. CATTERSON, CLERK

U.S. COURT OF APPEALS

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOUIS SCHNEIDER,

Plaintiff-Appellant,

Nos. 00-55798,

v. 00-56329

and REYBRO, INC., CV-90-1738-H

a California corpora-

tion, dba Quality ORDER

)

COUNTY OF SAN DIEGO, ) D.C. No.

)

Auto Recycling, )

)

Defendant.

The panel has voted to deny appellant’s petition for

rehearing and to reject the suggestion for rehearing en

banc.

The full court has been advised of the suggestion for

rehearing en banc and no active judge has requested a

vote on whether to rehear the matter en banc. Fed. R.

App. P. 35.

The petition for rehearing is denied and the

suggestion for rehearing en banc is rejected.

FILED

99 SEP 29 AM 8:16

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

LOUIS SCHNEIDER,

)

Plaintiff, ) CASE NO. 90-CV-1738 H

vs. )

) ORDER GRANTING

COUNTY OF SAN DIEGO, ) PLAINTIFF’S MOTION

et al., ) FOR ATTORNEY’S FEES

Defendant. )

Plaintiff Louis Schneider, through his attorneys

Louis Goebel and Kenneth Chesebro, filed a motion with

this court for an award of attorney’s fees. This court

entered judgment as a matter of law as to liability in

Schneider’s favor on his claims of takings and procedural

due process violations on December 21, 1998. A

subsequent trial was held, on damages only, and the jury

returned a verdict in favor of the plaintiff and against

defendants County of San Diego and Reybro, Inc. A total

verdict was entered for plaintiff Schneider in the amount

of $67,795.50. Schneider has filed a motion to recover

attorney’s fees, pursuant to 42 U.S.C. section 1988(b).

After fully considering the papers filed and the law,

the court grants plaintiffs motion for attorney’s fees. The

court finds a reasonable and proper award for Louis

Goebel to be $136,626.44 in attorney’s fees and

$31,268.411' in costs, for a total award of

$167,894.85. The court finds a reasonable and proper

award for Kenneth Chesebro to be $97,140.37 in

attorney’s fees and $13,949.54 in costs, for a total

! This amount includes $8,100.07 in costs already taxed by the Clerk of

Court.

award of $111,089.91. The court’s total award of

attorney’s fees and costs in this matter $278,984.76.

Background

Plaintiff Schneider originally filed this action under

42 U.S.C. section 1983 on December 13, 1990, alleging

violation of his civil rights. The pertinent facts are

described in the Ninth Circuit opinion in Schneider v

County of San Diego, 28 F.3d 89 (9th Cir. 1994).

Schneider owned a 1.4 acre lot in a rural, agriculturally

zoned area of San Diego County, near the city of

Oceanside. Schneider did not reside on the property, but

rented out the house located on the lot, and parked nine

buses, to motorhomes, and two automobiles on the lot.

The vehicles were visible from the public road that runs

in front of the lot. After receiving a variety of complaints

about the vehicles, the County investigated and

determined the vehicles violated county zoning

ordinances. The County posted a “Notice And Order To

Abate” on the property, which Schneider appealed. At the

hearing before the County Abatement Board, the hearing

officer determined Schneider had violated San Diego

County zoning ordinances, and that his violations

constituted a public nuisance. Schneider was given 30

days to abate the nuisance. When Schneider did not

remove the vehicles, the County towed the vehicles from

the lot and later destroyed them. |.

Schneider filed suit against the County and the

towing company, Reybro, Inc., under 42 U.S.C. section

1983. Schneider alleged violations of his civil rights,

including violations of procedural due process, Fourth

Amendment search and seizure violations, and a variety

of state law claims. The court granted summary

judgment in favor of defendants and dismissed the case.

On appeal to the Ninth Circuit, the Court of Appeals held

that Schneider’s Fourth Amendment rights were not

violated. However, the Ninth Circuit reversed the grant

of summary judgment on procedural due process

grounds, and remanded to the district court an allegation

of Fifth Amendment takings violation that was raised for

the first time on appeal.

The matter proceeded to trial in this court, and the

jury reached a verdict for defendants. Plaintiff Schneider

appealed to the Ninth Circuit this court’s denial of his

motion for judgment as a matter of law. The Ninth

Circuit, vacating the jury verdict, remanded to the

district court with instructions to grant the motion.

On December 21, 1998, this court entered judgment

as a matter of law as to liability on Schneider’s claims of

takings and procedural due process violations. The

remaining issue was of damages only and Schneider, for

strategic reasons, chose not to pursue the procedural

due process claim, but to only pursue the claim that his

property was taken without just compensation.

On January 20, 1999, the court entered a stipulation

and order as to the value of four vehicles. A subsequent

trial was held, on damages only, on nine remaining

vehicles, and a total verdict was entered for plaintiff

Schneider in the amount of $67,795.50. The court also

granted Schneider’s motion for prejudgment interest,

awarding prejudgment interest in the amount of

$34,145.54.

Plaintiff Schneider now moves this court for an

award of attorney’s fees, pursuant to 42 U.S.C. section

1988(b), as the prevailing party in the underlying action.

The County, a municipal entity, opposes the motion, and

asks the court to reduce the amount of fees awarded to

Schneider.

Discussion

I. Standard of Law

42 U.S.C. section 1988(b) was enacted in 1976, and

authorized district courts to award a reasonable

attorney’s fee to prevailing parties in civil rights litigation.

See 42 U.S.C. § 1988(b); Hensley v Eckerhart, 461 U.S.

424, 429 (1983). 42 U.S.C. § 1988(b) allows an award of

“reasonable,” and not “actual” attorneys fees. Therefore

10a

it is not sufficient for attorneys to provide the court with

the number of hours spent and a corresponding billing

rate; attorneys requesting fees have the burden of

proving that the time spent and hourly rate are

reasonable. The Supreme Court has recognized that

district courts retain great discretion in calculating the

reasonableness of the fee award. Id. at 437. The initial

calculation is reached by determining the “lodestar”

figure, which is the number of hours reasonably

expended multiplied by a reasonable rate. See Gates v.

Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992).

In calculating the lodestar amount, the district court

should take into account the totality of the

circumstances, utilizing the pertinent factors set forth in

Kerr v. Screen Extras Guild, 526 F .2d 67, 70 (9th Cir.

1975). See McGrath v. County of Nevada, 67 F.3d 248,

252 (9th Cir. 1995) (citing Hensley v. Eckerhart, 461 U.S.

424,433 (1983)); see also Robins v. Scholastic Book Fairs,

928 F. Supp. 1027, 1031 (D. Or. 1996). These factors are:

(1) the time and labor required, (2) the novelty and

difficulty of the questions involved, (3) the skill requisite

to perform the legal service properly, (4) the preclusion of

other employment by the attorney due to the acceptance

of the case, (5) the customary fee, (6) whether the fee is

fixed or contingent, (7) time limitations imposed by the

client or the circumstances, (8) the amount involved and

the results obtained, (9) the experience, reputation, and

ability of the attorney’s, (10) the undesirability of the

case, (11) the nature and length of the professional

relationship with the client, and (12) awards in similar

cases. Kerr, 526 F .2d at 70.

To set a reasonable billing rate the court must

consider the “prevailing market rates in the relevant

community” and determine what a lawyer of comparable

skill, experience and reputation would command in the

relevant community. Blum v. Stenson, 465 U.S. 886, 895

n.11 (1984); see also Robins, 928 F. Supp. at 1033. It is

plaintiffs burden to produce evidence convincing the

court “that the requested rates are in line with those

ila

prevailing in the community for similar services of

lawyers of reasonably comparable skill and reputation.”

Jordan v. Multnomah Cnty., 799 F.2d 1262, 1266 (9th Cir.

1986).

When determining a reasonable number of hours,

courts should exclude hours not reasonably expended.

“Counsel for the prevailing party should exclude from a

fee request hours that are excessive, redundant, or

otherwise unnecessary, just as a lawyer in private

practice is ethically obligated to exclude hours from his

fee submission.” Gates, 987 F .2d at 1397, citing

Hensley, 461 U.S. at 433-34. The moving party bears the

initial burden of documenting the appropriate hours

expended in the litigation and must submit evidence in

support of those hours worked. Id. at 433. The moving

party also bears the burden of establishing entitlement

to an award and demonstrating that the amount claimed

is reasonable. ld. at 437. The burden then shifts to the .

opposing party to rebut the moving party’s evidence.

Blum v. Stenson, 465 U.S. 886, 892 n. 5 (1984).

Once the court has computed the lodestar, the court

may make adjustments in the fee award based on the

level of success. Hensley, 461 U.S. at 434. “If. ..a

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. This will be true even where the

plaintiffs claims were interrelated, nonfrivolous, and

raised in good faith.” Id. at 435.

II. Analysis

Because of the lengthy progress of this case, the

court has divided it into three sections. The first phase

begins when the initial complaint was filed, and extends

through the first summary judgment motion by

defendants, the first appeal to the Ninth Circuit, and the

first trial. Phase One ends on September 22, 1995, when

the court denied plaintiffs motion for judgment as a

matter of law and motion for a new trial. Phase Two

12a

begins with plaintiff's second appeal to the Ninth Circuit,

and extends to the remand to this court, on August 26,

1998. Phase Three covers all time since remand to this

court.

A. Lodestar

The initial calculation of attorney’s fees under 42

U.S.C. section 1988 is reached by determining the

“lodestar” figure, which is the number of hours

reasonably expended multiplied by a reasonable rate.

See Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir.

1992). The court will determine a separate lodestar for

each of plaintiffs two attorneys, Mr. Goebel and Mr.

Chesebro.

Mr. Goebel acted as primary trial counsel in this

matter. He first met with the plaintiff on December 3,

1990, and has represented plaintiff continuously since

that time. Mr. Goebel has submitted an award request of

$283,000.84 in fees and costs. Including a requested

multiplier based on a rate of 10% interest, Mr. Goebel’s

requested award totals $417,400.55.

Mr. Chesebro acted as appellate counsel in this

matter. He was initially retained by plaintiff Schneider in

August, 1992, when he agreed to consult with Mr.

Goebel. Mr. Chesebro has submitted an award request of

$212,260.96 in fees and costs. Including a requested

multiplier based on a rate of 10% interest, Mr.

Chesebro’s requested award totals $278,862.71.

13a

1. Louis Goebel

Mr. Goebel has submitted a total of 1,232.1 billable

hours for the entirety of the case. The court has divided

the case into three phases for consideration of billable

hours expended. In view of the totality of the

circumstances and the Kerr factors, the court finds 1209

hours billed by Mr. Goebel were reasonable. The court

will disallow 22.5 hours billed during Phase 1 of the case.

The plaintiff was proceeding pro se at this time, and

allowing recovery of those hours by counsel is not

appropriate. The court finds the remainder of hours

billed by Mr. Goebel in this matter are reasonable, and

sets out the hours as follows.

[TABLE OMITTED]]

2. Kenneth Chesebro

Mr. Chesebro has submitted a total of 1018.41

billable hours for the entirety of the case. In view of the

totality of the circumstances and the Kerr factors, the

court approves as reasonable 882 hours for work done

by Mr. Chesebro and those working under him. Rather

than list a detailed item-by-item analysis of Mr.

Chesebro’s request for fees, the court instead notes

several of the County’s meritorious contentions regarding

the reasonableness of hours worked and the court’s

determination.

Mr. Chesebro was retained primarily in a consulting

role as an‘ appellate practitioner; his pro hac vice

application to appear in the Southern District of

California was not approved by the court until May,

1995. Mr. Chesebro has provided little or no

documentation as to his fee arrangement with Mr.

Schneider at the start of his involvement in the case,

except for a reference in a fax dated February 12, 1993

that a contractual fee arrangement would be drafted.

14a

However, no such arrangement was made _ until

December 17, 1998, when Mr. Schneider signed a written

fee agreement.

Mr. Chesebro has not produced contemporaneous

billing records to the court. Instead, he has produced an

invoice dated March, 1999. Although the court requested

contemporaneous records, these were not provided. Even

if the March, 1999 computer invoice is what Mr.

Chesebro considers his raw billing data, the block billing

entries in this invoice give little or no indication of how

much time was spent on particular kinds of legal work.

The. invoice does not consistently separate entries by

work done, but tends to group several tasks. The block

billing entries are not sufficient to satisfy Mr. Chesebro’s

burden to demonstrate the reasonableness of hours

spent on work. Additionally, an examination of the billing

invoice submitted by Mr. Chesebro exhibits a high rate of

delegation of work, resulting in duplication of efforts and

a lack of efficiency. The County challenges Mr.

Chesebro’s inclusion of time spent supervising law

students and contract workers in his total hours as

duplicative.

Although Mr. Chesebro has billing records for 1991,

there is no written documentation of Mr. Chesebro’s

agreement to work on the case until August 24, 1992.

Therefore, the court will not allow recovery for the 6

hours spent by Mr. Chesebro in 1991. Mr. Chesebro did

little substantive work on the case until 1993. For

instance, many early billing entries merely record reading

and analysis of cases and early court opinions. Plaintiff's

first appeal challenged the court’s grant of summary

judgment for the county, and review of the record would

not have been time-intensive. The second appeal followed

a very brief trial, limited by the court to only nine hours

per side or four court days; review of this record would be

necessarily limited, as well. However, during Phases One

and Two of the case, from 1993 to August, 1998, Mr.

Chesebro hired a total of 7 different individuals to work

under him on this case. Mr. Chesebro has not provided

any written agreement demonstrating that Mr. Schneider

lSa

gave his permission for these individuals to be hired until

after the fact, in a fee agreement dated December, 1998.

As Mr. Chesebro’s expertise was appellate work, and

review of the trial court record for both appeals was

relatively brief, the court finds that the 592.21 hours for

which Mr. Chesebro requests payment for two paralegals,

two law students and three contract workers (junior

attorneys) is excessive. especially because Mr. Chesebro

also requests payment for a total of 426.2 hours for

himself. The County alleges that the work performed by

Mr. Chesebro and the work done by the individuals he

hired had to overlap to a large degree, since there were a

limited number of tasks involved in preparing for and

litigating the two appeals. Mr. Chesebro has submitted

only block billing entries to account for his time and the

time of those individuals working under him. Some of the

law students and contract workers who worked on this

case were also working on different cases for Mr.

Chesebro, and it is unclear from the block billing entries,

especially in the case of the law students, whether the

hours requested are hours reasonably spent working on

Mr. Schneider’s matter. The court finds that these block

billing entries are not sufficient to demonstrate the

reasonableness of such a large number of hours spent by

several different individuals on a limited number of

tasks. Therefore, the court has reduced Mr. Chesebro’s

requested hours for work he performed during the case

by 10%. In addition, the court has reduced the hours

requested for the paralegals, law students, and contract

workers in Phase One by 10% for duplication of effort.

Mr. Chesebro has requested recovery of 14.5 hours

of paralegal-level work that he performed during Phase

Three of the trial. He requests recovery for this time at

$65 per hour, in addition to the 110.25 hours in Phase

Three for which he requests recovery at his attorney’s

hourly rate of $300. Phase Three begins after remand to

this court. There was no appeal during Phase Three, and

Mr. Goebel is a highly skilled trial litigator with thirty

years of experience. The County asserts that the request

for payment for the 14.5 hours of paralegal work

l6a

performed by Mr. Chesebro, in addition to the 110.25

hours he spent in his capacity as an attorney is

unreasonable, and the court agrees. Therefore, the court

will not allow recovery for the 14.5 hours of paralegal

work performed by Mr. Chesebro during Phase Three.

The County has pointed out that, at the start of the

case, depositions were attended by only one member of

Mr. Goebel’s law firm. However, after December 21,1998,

once liability was established and plaintiff was more

assured of an award of reasonable attorneys fees, both

Mr. Goebel and Mr. Chesebro attended two depositions

on January 19, 1999. The County contends that Mr.

Chesebro unnecessarily joined Mr. Goebel at these two

depositions, the pretrial conference on December 16,

1998 and the trial on damages on January 20, 1999. The

trial on damages lasted one day, and addressed only the

market value of the vehicles that had been removed from

Mr. Schneider’s property. Mr. Chesebro asserts that it

was necessary for him to attend the depositions, pretrial

conference, and trial “as second chair to Mr. Goebel.” Mr.

Chesebro states that he requests a recovery of $200 per

hour for the time he spent as “second chair” to Mr.

Goebel, instead of the $350 per hour he charged for other

work performed during Phase Three. As set forth in Parts

A.2.a. and A.2.b. of this order, the court has determined

that $300 per hour is the reasonable rate for both

attorney’s work during Phase Three. Therefore, the

combined hourly rate for Mr. Goebel and Mr. Chesebro at

the pretrial proceedings and trial on damages is $600 per

hour, which the court finds excessive. Therefore, a

reduction in Mr. Chesebro’s hours spent during the

damages phase of the case is necessary. Accordingly, the

court reduces Mr. Chesebro’s hours by 25% for Phase

Three.

Mr. Chesebro has requested recovery of 14.5 hours

of paralegal-level work that he performed during Phase

Three of the trial. He requests recovery for this time at

$65 per hour, in addition to the 106.44 hours in Phase

Three for which he requests recovery at his attorney’s

rate, which the court sets at $300 per hour. Phase Three

17a

begins after remand to this court. There was no appeal

during Phase Three, and Mr. Chesebro’s involvement as

an appellate specialist during that stage of the case was

limited. The County asserts that the request for payment

for the 14.5 hours of work such as faxing, copying and

filing performed by Mr. Chesebro (usually considered

overhead) in addition to the 110.25 hours Mr. Chesebro

spent in his capacity as an attorney is unreasonable, and

the court agrees. Therefore, the court will not allow

recovery for the 14.5 hours of paralegal work performed

by Mr. Chesebro during Phase Three.

In light of the law, the facts, and all the

circumstances, the court finds 882 hours to be a

reasonable number of hours for Mr. Chesebro’s role in

this matter. The court notes that even with the necessary

reductions in Mr. Chesebro’s requested hours to address

duplication of efforts by Mr. Chesebro and those working

under him, the court has allowed Mr. Chesebro to

recover payment for a total of 610 hours in Phase One for

the appeal of a single summary judgment motion,

including 71 hours spent by law students. The court also

notes that while Mr. Chesebro requested recovery for 717

hours in Phase One for the appeal of one summary

judgment motion, Mr. Chesebro requested recovery for

220 hours in Phase Two for the appeal of a four-day jury

trial. The court finds that a total of 20 hours is

reasonable for Phase Two. Finally, the court notes that

Mr. Chesebro requested recovery for 121 hours during

Phase Three. The only event that occurred during this

stage of the case was a one-day trial on the market value

of the vehicles towed from the plaintiffs lot. Given the

extensive trial experience of Mr. Goebel, and the fact that

Mr. Chesebro’s expertise is in appellate work, Mr.

Chesebro’s involvement at this stage was not necessary.

Nevertheless, the court has allowed Mr. Chesebro to

recover payment for 64 hours during Phase Three.

[TABLE OMITTED]

2. Reasonable Hourly Rate

18a

a. Louis Goebel

The Supreme Court has held that reasonable fees

under 42 section 1988 “are to be calculated according to

the prevailing market rates in the relevant community,”

taking into account the type of practice, the experience

of the attorney, and the community in which the attorney

practices. Blum v. Stenson, 465 U.S. 886,895 and n.ll

(1984). Mr. Goebel has requested a billable rate of $325

per hour for the entirety of the case, and has submitted

declarations in support of his request. Mr. Goebel has

been practicing law for approximately thirty years in the

San Diego area, and has focused his practice on land use

litigation. (Goebel Declaration, Exh. A at 2.)

The County opposes this rate as unreasonable, and

has submitted evidence in the form of declarations from

attorneys in the San Diego area who have similar

experience and qualifications to those of Mr. Goebel, and

have worked on similar land use and zoning cases. The

county’s evidence shows a reasonable rate under those

circumstances to range from $150 to $250 per hour. The

court takes judicial notice of those declarations, which

were filed in San Diego County Superior Court (between

1996 and 1998) and in the Southern District of California

(in 1997). (Defendants’ Opposition, Exh. B-D.)

The County’s evidence shows that the hourly rate of

a partner in the firm of Stephenson, Worley, Garratt,

Schwartz, Heidel & Prairie, which works exclusively on

zoning, planning and land use regulation in San Diego,

ranged in 1996 from $150 to $225 per hour. (Opposition,

Exh. C, -3, 6.) In another declaration, a San Diego

attorney with twenty years experience in zoning and land

use litigation stated that her billable rate had been

between $150 and $250 dollars from 1990 to the present.

(Opposition, Exh. D at 2.) Finally, the county submitted

the declaration of an attorney in a San Diego firm with

almost twenty years experience in complex

environmental and land use litigation. That attorney’s

billing rate was $225 in 1996.

19a

Accordingly, taking into account the declarations

presented by both parties, as well as the nature of the

work done, the experience of the attorney, the geographic

area of Mr. Goebel’s practice, the law and the totality of

the circumstances, the court sets the reasonable hourly

rate as follows:

Phase 1: $150 per hour

Phase 2: $200 per hour

Phase 3: $300 per hour

Mr. Goebel has also submitted hours billed by an

associate attorney in his firm. Mr. Goebel has billed

associate hours at the rate of $175 per hour. As Mr.

Goebel’s submission reflects, associate attorneys are

generally less experienced and knowledgeable than

partners or lead attorneys. The court takes judicial

notice of the declaration of Guylyn R. Cummins which

was filed in San Diego County Superior Court in 1997

and submitted by plaintiff to the court as evidence in this

case. In this declaration, Ms. Cummins states that a

junior attorney in the firm of Gray Cary Ware &

Freidenrich billed at $115 per hour. (Plaintiff’s Notice of

Lodgment in Support of Motion for Attorney ‘s Fees, Exh.

at 3.) In light of the court’s reasonable rates for Mr.

Goebel, the lead attorney for plaintiff in this matter, and

the prevailing market rate for associate work in the San

Diego area, the court finds a corresponding decrease in

Mr. Goebel’s requested associate rate is reasonable and

warranted by the market. Therefore, the court sets the

reasonable hourly rate for associates working for Mr.

Goebel as follows:

Phase 1: $100 per hour

Phase 2: $125 per hour

Phase 3: $150 per hour

Mr. Goebel has submitted 3.5 hours, a relatively

small number of hours billed by a paralegal in his office

at $60 per hour. Mr. Goebel was hired as trial counsel,

20a

and the trial stage of a case is very document-intensive

because of discovery, depositions and court filings.

Therefore, the court finds that the relatively small

number of hours billed by a paralegal in Mr. Goebel’s law

office justifies the rate of $60 per hour.

Accordingly, the court sets the following reasonable

hourly rates for Mr. Goebel and those working under

him.

[TABLE OMITTED]

b. Kenneth Chesebro

Mr. Chesebro has submitted a variable billable rate

for his work on this case. He seeks a rate of $285 per

hour from August, 1992, when he began consulting with

Mr. Goebel, through mid-1993. Mr. Chesebro raised his

rate to $300 per hour in June, 1993, and to $350 per

hour in January 1998. Mr. Chesebro’s practice consists

primarily of constitutional and appellate litigation. In

contrast with Mr. Goebel, who has been practicing for

approximately thirty years, Mr. Chesebro has been

practicing for only approximately ten years. Although Mr.

Chesebro asserts that there are currently no attorneys

practicing in the San Diego area “who have a level of

skill, experience, and reputation comparable to [his]

own,” (Amended Chesebro Decl. at 10.) the court

disagrees. In support of his request, Mr. Chesebro has

included declarations from attorneys practicing in San

Francisco and Los Angeles who assert that between $285

and $350 per hour is a reasonable rate. The Supreme

Court has held that reasonable fees under 42 section

1988 “are to be calculated according to the prevailing

market rates in the relevant community,” taking into

account the type of practice, the experience of the

attorney, and the community in which the attorney

practices. Blum v. Stenson, 465 U.S. at 895 n.il.

The court is not persuaded by Mr. Chesebro’s

assertion that no attorneys currently practicing in the

San Diego area are comparable to him in terms of

2la

reputation and experience. For instance, the County

submitted the declaration of a San Diego attorney who

graduated from Yale Law School, clerked for a district

court judge, and worked as a civil trial attorney at the

United States Department of Justice in Washington, D.C.

(Opposition, Exh. C.) The court takes judicial notice of all

declarations submitted by the county, as the declarations

were filed in San Diego County Superior Court and the

United States District Court for the Southern District of

California in other matters. (Opposition, Exh. B-D.) The

attorney in the county’s declaration was lead counsel for

the United States in the complex, multidistrict Agent

Orange litigation. (Id. at 2.) The attorney also worked in

the Office of Independent Counsel on the Iran-Contra

matter. (Id. at 3.) Certainly, this is an attorney with a

comparable, national practice and experience handling

complex litigation; this attorney billed $225 per hour in

1996.

Additionally, Mr. Chesebro’s legal experience weighs

against a finding that his requested hourly rate is

reasonable. Mr. Chesebro has_ been practicing

constitutional and appellate law for approximately ten

years. In contrast, the attorneys who submitted

declarations on behalf of Mr. Chesebro have been

practicing for a significantly longer period of time. For

example, plaintiff has provided as evidence a declaration

by Guylyn R. Cummins, a constitutional law expert who

has been practicing for fifteen years, in which Ms.

Cummins states that she billed her clients at $250 per

hour in 1997. In addition, the declaration states that

Marcelle Mihaila, an appellate specialist who has also

been practicing for substantially longer than Mr.

Chesebro, billed at $300 per hour. Mr. Chesebro has

requested recovery at $300 per hour for Phase Two, from

fall of 1995 to summer of 1998, and at $350 per hour for

Phase Three, from fall of 1998 to spring of 1999. The

court finds that it would be excessive to allow Mr.

Chesebro to recover the same rate as a lawyer who has

been practicing for substantially longer than he has.

Accordingly, the court finds that a reasonable hourly rate

22a

for Mr. Chesebro during Phase Two is $200 per hour.

Finally, the court notes that Mr. Chesebro did not

enter into a written fee agreement with the plaintiff until

the middle of Phase Three, in December, 1998, leaving

little or no documentation as to his fee arrangements

with Mr. Schneider or any agreement as to hourly rate.

Mr. Chesebro has also failed to submit declarations that

he has billed and collected the amount he presents as his

customary billing rate. The primary case Mr. Chesebro

references as comparable to the instant matter is Meilicke

v. County of Los Angeles, 1991 Cal. App. LEXIS 747

(June 23, 1991), rev. denied. op. withdrawn by order of

ct., 1991 Cal. LEXIS 4628, cert. denied, 502 U.S. 1099

(1992). Although no fee award was ruled on by the court,

Mr. Chesebro states he computed the lodestar in that

matter to be $180,275.00, paid by defendants for his

work on that case. (Supplemental Chesebro Declaration,

q 2). Counsel for plaintiff in that case were Laurence H.

Tribe and Mr. Chesebro. The court notes that the hourly

rate charged by Mr. Tribe, who has been arguing

constitutional issues before the United States Supreme

Court for as long as Mr. Chesebro has been in practice

and is a nationally recognized constitutional law scholar,

is much higher than the rate at which Mr. Chesebro bills

his clients. Given this discrepancy, and the fact that Mr.

Chesebro does not include the number of hours he billed

to reach the lodestar figure in the Meilicke case, the

comparison is of little use to the court in determining a

reasonable rate for Mr. Chesebro’s services.

Accordingly, taking into account the entirety of the

Kerr factors, the declarations presented by both parties,

as well as the nature of the work done and the

experience of the attorney in question, the court sets the

reasonable hourly rate for Mr. Chesebro as follows:

Phase 1: $150 per hour

Phase 2: $200 per hour

Phase 3: $300 per hour

Mr. Chesebro has also submitted hours billed by

23a

four contract workers who are junior attorneys. None of

the contract workers were out of law school for more

than eight years when they worked on this case for Mr.

Chesebro. One of the contract workers had graduated

from law school less than one year before assisting Mr.

Chesebro on this case. These contract workers are not

associates of Mr. Chesebro. Unlike the associates who

worked on this case and are employed by the “Law

Offices of Louis Goebel,” the contract workers hired by

Mr. Chesebro on a case-by-case basis are not his

associates. They do not receive a full package of employee

benefits such as retirement plans, office space,

resources, or other benefits. Mr. Chesebro does not pay

any overhead costs for them. In his written fee agreement

of December, 1998 with Mr. Schneider, Mr. Chesebro

states that all sums payable for services provided by

individuals working under him are payable directly to

him. The court notes that Mr. Chesebro has not

submitted any documentation of his compensation

arrangements with any of the contract workers, law

students, or paralegals he hired to work on this case. Mr.

Chesebro seeks to recover more than the amount he paid

these individuals even though there are few, if any, of the

indicia that would justify Mr. Chesebro making a profit

on théir work at the expense of the County. In a letter

dated August 3, 1999, the County strenuously objects to

Mr. Chesebro’s “charging between two and three times as

much for independent contractors as their actual

compensation.” |

Mr. Chesebro had_ different compensation

arrangements with each of the contract workers. Two

were paid $40 per hour and Mr. Chesebro seeks to

recover $100 per hour for their work. During the August

27, 1999 oral argument, Mr. Chesebro stated that the

third contract worker, Mr. Hartley, was paid $50 per

hour for his work in the spring of 1995 on the summary

judgment motion, and that it was not until later in 1995

when Mr. Hartley switched his payment arrangement

with Mr. Chesebro to a contingency fee. Mr. Chesebro

seeks to recover $125 per hour for Mr. Hartley’s work.

24a

The court finds that $50 per hour is the market rate, but

under the circumstances, the court will authorize

recovery at $75 per hour for Mr. Hartley’s work.

The fourth contract worker, Peter Cohen, was not

paid at all at the time services were rendered in 1993 and

1994, but he and Mr. Chesebro agreed that he would be

paid out of the court’s award of fees and expenses. Mr.

Chesebro seeks to recover $150 per hour for Mr. Cohen’s

work. Mr. Cohen states in his declaration that his hourly

rate at Choate, Hall & Stewart as a lawyer with 4 years

of experience in 1990 was $150 per hour. Mr. Chesebro,

unlike the law offices of Choate, Hall & Steward pays no

overhead costs for Mr. Cohen’s services. Nor does Mr.

Chesebro provide his clients with the resources and

conveniences that are available at a law firm such as

Choate, Hall & Stewart and justify billing associates’ time

at a higher rate than the associates are paid. In addition,

Choate, Hall & Stewart is a law firm in Boston, not San

Diego, and therefore its billing practices are not

demonstrative of “the prevailing market rates in the

relevant community.” Blum v Stenson, 465 U.S. at 895

n.1. Because Mr. Chesebro has not justified why he

should make a substantial profit off of the contract

workers’ work, the court finds that recovering $100 to

$150 per hour for these individuals’ work is excessive.

Plaintiff has provided the ccurt with a declaration by

Guylyn Cummins, in which Ms. Cummins states that the

standard rate for a junior attorney in the firm of Gray

Cary Ware & Freidenrich was $115 per hour in 1997. The

court notes that the rate 0 f $115 per hour was the rate

at which a large San Diego firm billed a junior attorney,

and should be higher than the hourly rate which Mr.

Chesebro recovers for work done by the contract workers

he hired.

To set a reasonable billing rate, the court must

consider “the prevailing market rates in the relevant

community.” ld. The market rate for an independent

contractor’s services is what a willing person would work

for. The individuals who worked for Mr. Chesebro are

independent contractors, and if Mr. Chesebro was not

25a

paying the market rate, they would have found work

elsewhere. If these contract workers were associated with

Mr. Chesebro in a law office, as in the case of Mr.

Goebel’s associates, then the market rate for their

services would be higher. The court finds that Mr.

Chesebro has not demonstrated why he should make a

profit off of the contract workers he hired or why the

market rate for their services is not what he paid them.

Nevertheless, the court will allow a recovery to Mr.

Chesebro of more than what he paid the contract

workers. Accordingly, the court sets the reasonable

hourly rate for Mr. Chesebro’s contract workers as

follows:

Phase 1: $75 per hour

Phase 2: $100 per hour

Mr. Chesebro has submitted a substantial number of

hours billed by two paralegals working for him on this

matter. Mr. Chesebro paid the paralegals $30 per hour

for their work on this case and seeks to recover a variable

rate of between $30 and $65 per hour. The two

paralegals hired by Mr. Chesebro, one of whom is Donald

Chesebro, are not permanent employees of Mr. Chesebro.

Mr. Chesebro had no costs, such as employee benefits or

office maintenance or facilities in conjunction with his

hiring the paralegals. The paralegals do not receive any

of the employee benefits that are provided to paralegals

who work for a law firm and justify the employer’s billing

their work to clients at a higher rate. As independent

contractors, the market rate for their work is

demonstrated by Mr. Chesebro’s payment to them. If Mr.

Chesebro paid them less than the market rate, then they

would have worked elsewhere. Therefore, the amount Mr.

Chesebro paid the paralegals is the market rate for their

work. In the case of paralegal work, to which the Kerr

factors such as (2) difficulty of the legal questions

involved, (4) preclusion of other employment due to

acceptance of the case, and (9) experience and reputation

of the attorney, do not easily apply, the market rate is the

26a

best indicator of what is a reasonable fee. See Kerr, 526

F .2d at 70; see also Blum v Stenson, 465 U.S. at 895 nll.

Therefore, the court finds that a reasonable fee for the

paralegals’ work is the $30 per hour that Mr. Chesebro

paid them.

Mr. Chesebro hired two law students to work on this

case during the first stage, in 1993. He seeks to recover

$85 per hour for the law students’ work. Under a totality

of the circumstances, including such factors as (3) the

skill required to perform the legal service properly, (5) the

customary fee, (8) the amount involved and the results

obtained, and (11) the nature and length of the

professional relationship with the client, the court finds

a recovery of $85 per hour for law students excessive and

unreasonable. See Kerr, 526 F .2d at 70. The law

students were working on the briefing and oral argument

in the first appeal, most of which focused on legal

arguments upon which Mr. Schneider never prevailed.

Mr. Chesebro has not demonstrated that the law

students had any extraordinary skills or a relationship

with the client. Nor has Mr. Chesebro shown that the

customary fee for law students is $85 per hour. Mr.

Chesebro’s own payment records reflect that he paid one

law student working for him $20 per hour and the other

$40 per hour. Mr. Chesebro paid no overhead costs in

conjunction with hiring the law students, and they are

not permanent employees. The rate at which Mr.

Chesebro paid them is the market rate. Therefore, the

court finds that the amount Mr. Chesebro paid the law

students is an appropriate amount for him to recover

from the County. Accordingly, the court will allow

recovery of billed law student time at $20 or $40 per

hour, depending on what Mr. Chesebro paid each law

student.

The court sets the following reasonable hourly rates

for Mr. Chesebro and individuals working with him. The

court notes that, given Mr. Chesebro’s primary role in

this case as appellate specialist, and Mr. Goebel’s high

level of skiil and experience as a trial lawyer, a total

award of 882 hours for Mr. Chesebro is a very

27a

substantial recovery. The court also notes that it allowed

recovery for a large number of hours for law students

and contract workers in Phase One. Accordingly, Mr.

Chesebro’s Phase One recovery is 610 hours for the

appeal of a single summary judgment motion, while his

Phase Two recovery is 208 hours for the appeal of a

four-day jury trial. Given the court’s allowance of a

relatively large number of hours, the court finds that the

hourly rates for the work performed by Mr. Chesebro and

those working under him are reasonable and

appropriate.

[TABLE OMITTED]

3. Lodestar Figure

Plaintiff has requested a “lodestar” multiplier to

account for the delay in payment of attorney’s fees and

costs, based on an interest rate of 10%. Plaintiff relies on

Missouri v. Jenkins, 491 U.S. 274, 17 281-83 (1989) as

authority to support his contention for an upward

adjustment. However, the Court in Missouri stated only

that an such an enhancement, “where appropriate,”

constitutes part of a reasonable attorney’s fee. Id. At 282.

It remains in the court’s discretion to determine what

type of enhancement is appropriate, as the Supreme

Court has stated: “We reemphasize that the district court

has discretion in determining the amount of a fee award.”

Hensley, 461 U.S. at 437. The County has strenuously

objected to plaintiffs request for a multiplier to increase

the overall amount of attorney’s fees and costs. The court

agrees that such a multiplier would yield an excessive

award, but is willing to consider an appropriate award of

interest on the Phase One amount. Accordingly, after

fully considering the law and all evidence provided to the

court by the parties, the court sets the following lodestar

figures.

[TABLE OMITTED]]

28a

B. Reduction for Limited Success

The Supreme Court has held that it is appropriate

and necessary for the district court to make adjustments

in awards to take into account a plaintiffs overall

success. See Hensley, 461 U.S. 434, 435. It is well within

the district court’s discretion to make such an

adjustment. See Schwarz v. Secretary of Health & Human

Services, 73 F .3d 895, 902 (9th cir. 1995). “[T]he product

of hours reasonably expended on the litigation as a whole

times a reasonable hourly rate may be an excessive

amount. This will be true even where the plaintiffs

funsuccessful] claims were interrelated, non- frivolous,

and raised in good faith.” Hensley, 461 U.S. at 436.

In the instant matter, the County urges the court to

decrease the plaintiffs award of attorney’s fees for limited

success. The County presents a variety of reasons for

such a reduction. Mr. Schneider originally sued ten

individual defendants, against whom he did not prevail.

Although plaintiff spent substantial time during the first

phase of the case pursuing a Fourth Amendment claim

for search and seizure violations; summary judgment

was granted for defendants on this claim, and upheld on

appeal to the Ninth Circuit. Plaintiff also originally

demanded punitive damages and damages for emotional

distress, lost income and profits. Plaintiff did not recover

damages for any of those claims. Finally, plaintiff brought

claims of fraud and statutory violations against

defendants, and did not succeed on those claims, either.

(Opposition,3-4.)

Although plaintiff was successful on his takings and

procedural due process claims, in light of his

unsuccessful pursuit of various other claims the court

finds it is appropriate and reasonable to decrease the

attorney’s fee award, in Phase One only, by 25%. The

court especially looks to the Fourth Amendment claim,

which was one of the primary claims in plaintiffs original

complaint, and which was dismissed on summary

judgment, in making this reduction. The court therefore

awards plaintiff 75% of the lodestar in Phase One as a

29a

reasonable attorney’s fee.

[TABLE OMITTED]

C. Interest

Plaintiff requests a multiplier of 10% to account for

delay in payment and cites Missouri v. Jenkins,491 U.S.

at 281, as support for an upward adjustment. The

Supreme Court in Missouri did note that an attorney’s

fees award may be adjusted for delay in payment. See

Missouri, 491 U.S. 274, 282, citing Pennsylvania v.

Delaware Valley Citizens’ Council, 483 U.S. 711 (1987).

However, the Court also specifically noted that a district

court may compensate for delayed payment either

through an award of interest or by adjusting the fee rate.

Id. The court, in its discretion, will both award interest

and adjust the fee rate to accommodate the delay in

payment. However, the court finds that plaintiff has not

demonstrated that 10% is an appropriate rate of interest.

Plaintiffs basis for a 10% interest rate on delayed

payments is a declaration of an attorney in the law firm

of Howard, Rice, Nemerovski, Canady, Falk & Rabin in

which the attorney states that the firm imposes a service

charge on balances outstanding for more than thirty days

after the initial invoice date. However, the circumstances

of this case can be distinguished from those of the

average case handled by a law firm such as Howard,

Rice. The court notes that the usual assumption under

which lawyers are hired is that the lawyer will receive

payment when services are rendered. However, in this

case, plaintiff was not assured of receiving an award until

December 21, 1998. In addition, the written fee

arrangements between plaintiff and his attorneys did not

state that plaintiff would be charged a rate of 10%

interest on overdue payments: on the contrary, the

premise of the fee arrangement was that payment would

be delayed until the court made an award of reasonable

attorneys fees and expenses.

30a

The court has already accounted for delay in

payment by scaling the fee rate over time, to reflect the

rising market rates. Mr. Goebel and Mr. Chesebro’s rates

range from $150, to $200, to $300; similarly, rates for

associate attorneys and contract workers range from

$100/$75, to $100/$125, to $150. Because this case

spans eight years, the court finds that it is appropriate to

award interest for the substantial delay in payment for

the first years of the case. Therefore, the court will award

interest on the Phase One lodestar, which covers the

years 199 I to 1995. The court finds that an appropriate

rate of interest is the post-judgment rate of 4.545%,

_ particularly since liability was not determined until

December 21, 1998. Accordingly, the court will award

interest at a rate of 4.545% on the Phase One lodestar

only.

[TABLE OMITTED]

3la

D. Costs and Expenses

1. Louis Goebel

Mr. Goebel has requested $31,268.41 in costs and

expenses for the duration of this case. The County

objects to $25,107.50 of Mr. Goebel’s requested costs.

The court finds that, pursuant to 42 U.S.C. section 1988,

costs may be recoverable as part of the award to a

prevailing party. See 42 U.S.C. section 1988. Recoverable

costs under Section 1988 may include witness costs,

photocopies, depositions, travel costs, and telephone

costs. See Thornberry v. Delta Air Lines, 676 F.2d 1240,

1244 (9th Cir. 1982) (photocopies, travel and telephone

costs recoverable); Alflex Corp. uv. ¢Underwriters

Laboratories, Inc., 914 F.2d 175, 177-78 (9th Cir. 1990)

(deposition costs recoverable); Burt v. Hennessey, 929

F.2d 457, 459-50 (9th Cir. 1991) (photocopying, expert

witness fee, exhibit expenses recoverable). In order to be

recoverable, costs must be reasonable and necessary for

effective and competent representation. See Thornberry,

676 F.2d. at 1244 (9th Cir. 1982); Robins v. Scholastic

Book Fairs, 928 F.Supp. at 1035.

Mr. Goebel’s itemized expenses all fall within

appropriate categories for consideration as recoverable.

Plaintiff has already been awarded $8,100.07 through the

Clerk of Court’s taxing of costs and requests the court

deduct this amount from any costs and expenses

awarded to Mr. Goebel by the court. (Plaintiffs Reply at

7.) The court therefore awards Mr. Goebel $31,268.41 in

costs and expenses, minus $8,100.07 already awarded.

[TABLE OMITTED]

2. Kenneth Chesebro

Mr. Chesebro has requested $14,961.71 in costs and

expenses for the duration of this case. The county

disputes $7,747.70 of those expenses. Initially, the

county objects to long distance telephone charges

32a

accrued prior to Mr. Chesebro’s formally agreeing to

consult with Mr. Goebel on this case. The court agrees

such charges are not reasonable, and — $15.17 for

those charges.

In addition, the court will disallow save and hotel

expenses accrued when Mr. Chesebro personally

attended the Pre-Trial Conference on December 16, 1998.

The court encouraged Mr. Chesebro to appear at the

Pre-Trial Conference telephonically, as personal

attendance and the resulting expense was unnecessary.

Although it was Mr. Chesebro’s decision to attend the

Pre-Trial Conference in person, the court will not approve

travel and hotel expenses. Therefore, the court disallows

$997.00. Accordingly, the court awards $13,949.54 in

costs and expenses to Mr. Chesebro.

[TABLE OMITTED]]

E. Final Award

The court has taken into careful consideration

plaintiffs arguments in support of Mr. Goebel’s and Mr.

Chesebro’s calculations of their attorneys fees and

expenses. The court has also reviewed the County’s

numerous objections to plaintiff's requested fees and

expenses. In particular, the County points out that

during Phase One and Phase Two of the case, Mr.

Chesebro had a total of seven different individuals

working under him. The County alleges that work done

by the contract workers, law students, and paralegals

hired by Mr. Chesebro was duplicative. The County also

alleges that the number of hours for which Mr. Chesebro

requests payment is disproportionate to his role in the

case. The County argues that it was unnecessary for both

Mr. Goebel and Mr. Chesebro to attend the depositions,

pretrial conference and trial to determine damages

during Phase Three of the case. The County asserts that

this was a simple trial on the issue of the market value

of the buses, motorhomes, and automobiles removed

from plaintiffs lot, but it occurred after a finding of

33a

liability, and therefore grounds for recovery of attorney’s

fees, was established. The court agrees.

Therefore, after fully considering the papers filed,

the law, and the totality of the circumstances, the court

makes a final award to plaintiff Schneider of $136,626.44

in attorney’s fees and $31,268.41 in costs for Louis

Goebel and $97,140.37 in attorney’s fees and $13,949.54

in costs for Kenneth Chesebro, for a total award of

$278,984.76. The jury award in this case was

$67,795.50, with a prejudgment interest award of

$34,145.54, for a total award of $1 01,941,04. The court

notes that the attorney’s fees award is over two and

one-half times the plaintiffs recovery for actual damages

and interest. The court is extremely familiar with this

case, has given thoughtful and deliberate consideration

to the arguments of all parties, and finds in the totality

of the circumstances that a total award of $278,984.76

is fair and reasonable.

[TABLE OMITTED]]

IT IS SO ORDERED.

DATED: 9/28/99

/s/ Marilyn L. Huff

MARILYN L.HUFF, CHIEF JUDGE

UNITED STATES DISTRICT COURT

34a

FILED

OO MAR 16 PM 1:55

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

LOUIS SCHNEIDER,

CASE NO. 90-CV-1738 H

Plaintiff,

vs. ORDER GRANTING

IN PART PLAINTIFF’S

COUNTY OF SAN DIEGO, MOTION FOR

RECONSIDERATION

em ee ee eee eee eee eee

Defendant.

On March 31, 1999, plaintiff Louis Schneider filed a

motion for an award of attorneys’ fees and expenses

pursuant to 42 U.S.C. § 1988(b). On September 29,

1999, the Court issued an order granting in part and

denying in part plaintiffs motion for attorneys’ fees and

finding that a total award of $278,984.76 to plaintiff’s

lawyers, Mr. Goebel and Mr. Chesebro, is fair and

reasonable (“the Order”). On October 29, 1999, plaintiff

filed a motion for reconsideration of the Court’s Order.

On December 20, 1999, the County filed an opposition to

the motion for reconsideration in which the County

strenuously opposed plaintiffs arguments. The County

reiterated the objections it has made _ to plaintiffs

request for attorneys’ fees and expenses since the County

filed its original opposition in May of 1999. The Court has

taken into consideration the submissions from plaintiff

and the County in making its determination to grant in

part and deny in part the motion for reconsideration.

Based on the Court’s reconsideration, the Court finds

that a total award of $305,617 .30 is fair and reasonable.

35a

Background

Plaintiff filed this action under 42 U.S.C., § 1983 on

December 13, 1990, alleging violation of his civil rights.

Mr. Schneider owned a 1,4 acre lot in a rural,

agriculturally zoned area of San Diego County, near the

city of Oceanside. Mr. Schneider did not reside on the

property, but rented out the house located on the lot,

and parked nine buses, two motorhomes, and two

automobiles on the lot. The vehicles were visible from the

public road that runs in front of the lot. After receiving a

variety of complaints about the vehicles, the County

investigated and determined the vehicles violated county

zoning ordinances. The County posted a “Notice And

Order To Abate” on the property, which Mr. Schneider

appealed. At the hearing before the County Abatement

Board, the hearing officer determined Mr. Schneider had

violated San Diego County zoning ordinances, and that

his violations constituted a public nuisance. Mr.

Schneider was given 30 days to abate the nuisance.

When Mr. Schneider did not remove the vehicles, the’

County towed the vehicles from the lot and later

destroyed them.

Mr. Schneider filed suit against the County and the

towing company, Reybro, Inc., under 42 U.S.C. section

1983. Mr. Schneider alleged violations of his civil rights,

including violations of procedural due process, Fourth

Amendment search and seizure violations, and a variety

of state law claims. The court granted summary

judgment in favor of defendants and dismissed the case.

On appeal to the Ninth Circuit, the Court of Appeals held

that Mr. Schneider’s Fourth Amendment rights were not

violated. However, the Ninth Circuit reversed the grant of

summary judgment on procedural due process grounds,

and remanded to the district court.

The matter proceeded to trial in this Court, and the

jury reached a verdict for defendants. Mr. Schneider

appealed to the Ninth Circuit this Court’s denial of his

motion for judgment as a matter of law. The Ninth

Circuit, vacating the jury verdict, remanded to the

36a

district court with instructions to grant the motion.

On December 21, 1998, this Court entered judgment

as a matter of law as to liability on Mr. Schneider’s

claims of takings and procedural due process violations.

On January 20, 1999, the Court entered a stipulation

and order as to the value of four vehicles. A subsequent

trial was held, on damages only, on nine remaining

vehicles, and a total verdict was entered for Mr.

Schneider in the amount of $67,795.50 The court also

granted Mr. Schneider’s motion for prejudgment interest,

awarding prejudgment interest in the amount

01'534, 145.54 for a total award of $101, 941.04.

Plaintiff filed a motion pursuant to 42 U.S.C.

§1988(b) on March 31, 1999 to recover reasonable

attorneys’ fees and expenses incurred by his trial lawyer,

Louis E. Goebel, and his appellate lawyer, Kenneth J.

Chesebro. Over the next six months, the issue of

reasonable attorneys’ fees and expenses was heavily

briefed in order to ensure that the Court had sufficient

information to apply the factors set out in Kerr v. Screen

Extras, 526 F.2d 67, 70 (9th Cir. 1975). In Kerr, the Ninth

Circuit stated that, in calculating a reasonable attorneys’

fee, the district court should take into account: (1) the

time and labor required, (2) the novelty and difficulty of

the questions involved, (3) the skill requisite to perform

the legal service properly, (4) the preclusion of other

employment by the attorney due to the acceptance of the

case, (5) the customary fee, (6) whether the fee is fixed or

contingent, (7) time limitations imposed by the client or

the circumstances, (8) the amount involved and the

results obtained, (9) the experience, reputation, and

ability of the attorneys, (10) the undesirability of the

case, (11) the nature and length of the professional

relationship with the client, and (12) awards in similar

cases. Kerr, 526 F .2d at 70.

In its opposition papers filed in May of 1999, the

County objected to the reasonableness of the fee petition.

Under Kerr factor (1) the time and labor required, the

County objected to the large number of hours submitted

for recovery by Mr. Chesebro and Mr. Goebel. See

37a

County’s Opposition to Goebel Motion for Attorneys’ Fees

at 8-11; County’s Opposition to Chesebro Motion for

Attorneys’ Fees at 9. In addition, the County objected to

the “clustered entries” submitted by Mr. Chesebro

because the block billing in the records he filed with the

Court does not provide a sufficiently detailed account of

how much time was spent on specific tasks. See County’s

Opposition to Chesebro Motion for Attorney’s Fees at

10-12. Under Kerr factor (2) the novelty and difficulty of

the questions involved, the County objected to Mr.

Chesebro’s request to recover for 587 hours for work

performed by seven different individuals (contract

workers), as this large number of hours reflects

duplication of effort. See id. at 10-12. With regard to Kerr

factor (3) the skill requisite to perform the legal service

properly, the County objected to Mr. Chesebro’s request

to recover for time spent and expenses incurred in

preparing for and attending the one-day trial on damages

that occurred in 1999, as Mr. Goebel was “adequately

handling all such matters.” See id. at 9-10, 18. Under

Kerr factor (4) the preclusion of other employment by the

attorney due to the acceptance of the case, the County

objected to the hourly rates at which Mr. Chesebro

sought to recover for the work he performed, especially

since he delegated tasks to four different contract

attorneys and much of his time was spent in reviewing

the work of others. See id. at 12.

In relation to Kerr factor (5) the customary fee, the

County objected to the hourly rates requested by Mr.

Goebel and Mr. Chesebro for their work and the work of

those assisting them on the case as excessive and

substantially higher than the prevailing market rate. See

County‘s Opposition to Goebel Motion for Attorneys’ Fees

at 6-8; County’s Opposition to Chesebro Motion for

Attorneys’ Fees at 6-8. Under Kerr factor (6) whether the

fee is fixed or contingent, the County objected to the lack

of documentation of a fee agreement between Mr.

Chesebro and Mr. Schneider that authorized other

lawyers to provide services under both hourly and

38a

contingent arrangements. See County’s Notice of

Lodgment in Support of Opposition to Motion for

Attorneys’ Fees, Exh. E. With regard to Kerr factor (7)

time limitations imposed by the client or the

circumstances, the County objected to any recovery at all

for the contract workers hired by Mr. Chesebro, as their

work in this case resulted in duplication of effort. See

County’s Opposition to Chesebro Motion for Attorneys’

Fees at 10. Under Kerr factor (8) the amount involved

and the results obtained, the County objected to

plaintiffs counsel’s request for attorneys’ fees for all time

spent on the case because many of plaintiffs claims were

dropped or rejected and a corresponding decrease in the

attorneys’ fee award is necessary. See County’s

Opposition to Goebel Motion for Attorneys’ Fees at 2-5;

County’s Opposition to Chesebro Motion for Attorneys’ Fees

at 2-5.

Under Kerr factors (9) the experience, reputation,

and ability of the attorneys and (11) the nature and

length or the professional relationship with the client, the

County objected to Mr. Chesebro’s request to recover for

any of the hours spent by law students on the case,

much less recovery at the requested rate of $85 per hour.

See County’s Opposition to Chesebro Motion for Attorneys’

Fees at 11. Under Kerr factor (12) awards in similar

cases, the County objected to the evidence submitted by

plaintiffs counsel and presented its own evidence (of

Court-awarded attorneys’ fees) indicating the range for a

reasonable award of attorneys’ fees in this case. See

County’s Opposition to Goebel Motion for Attorneys’ Fees

at 7, Exh. B-D; County’s Opposition to Chesebro Motion for

Attorneys’ Fees at 6- 7, Exh. B-H.

In response to the County’s objections, and in order

to gather sufficient information to apply the Kerr factors,

the Court ordered several phases of supplemental

briefing. On April 16, 1999, the Court ordered plaintiff's

counsel to submit fee agreement letters and copies of any

orders from the Ninth Circuit remanding the disposition

of attorneys’ fees. On July 21, 1999, the Court ordered

39a

plaintiffs counsel to submit payment stubs documenting

payments to any law students for work done on the case.

On July 23, 1999, the Court ordered plaintiffs counsel to

submit original, contemporaneous billing records for all

time billed. Finally, on September 3, 1999, the Court

ordered Mr. Chesebro to submit a list of contract workers

who performed work on the case and any Il

correspondence, memos, letters, or other documents

addressing fees or his billing arrangement with plaintiff.

On September 29, 1999, the Court issued its Order

granting in part and denying in part plaintiffs motion fur

attorneys’ fees and expenses, The Court found that,

under the totality of the circumstances, a total award of

$278, 984 is fair and reasonable. On October 29, 1999,

plaintiff filed the instant motion for reconsideration of the

Court’s Order. The County filed its opposition on

December 20, 1999, reaffirming the objections it had

made throughout this litigation to the reasonableness of

plaintiffs counsel’s request for attorneys’ fees and

expenses. Plaintiff filed a reply brief.on January 18,

2000. On February 4, 2000, the County filed objections

to portions of plaintiffs reply brief. The Court has

reviewed the papers submitted by the parties.

Discussion

I. Legal Standard

A. Lonel lard f Motion for R id ;

Under the Civil Local Rules for the Southern District

of California, an application for reconsideration of a

court’s order must show “what new or different facts and

circumstances are claimed to exist which did not exist, or

were not shown, upon such prior application.” Local Rule

7.1(I)(1) titled “Application for Reconsideration.”

Similarly, Ninth Circuit precedent clearly states that,

absent highly unusual circumstances, the court will

grant a motion for reconsideration only if the court

40a

(1) is presented with newly discovered evidence

(2) committed clear error or the initial decision was

manifestly unjust, or

(3) if there is an intervening change in controlling law.

See School District No. 1, Multonmah County v. AC&sS, Inc,

5 F.3d 1255, 1263 (9th Cir. 1993). The instant motion for

reconsideration contains documents that were easily

accessible to plaintiff at the time the original motion was

being litigated. “The overwhelming weight of authority is

that the failure to file documents in an original motion or

opposition does not turn the late filed documents into

‘newly discovered evidence.” Id. The Court notes that

nearly six months were spent in resolving plaintiff's

motion for attorneys’ fees and expenses and lengthy

papers were filed in support of that motion, including

supplemental briefing requested by the Court. The Court

also finds that plaintiff has not provided an adequate

explanation for why the supporting evidence now

submitted with the motion for reconsideration was not

presented to the Court in the original motion.

In the instant motion for reconsideration, plaintiff

has failed to demonstrate that there has been (1) newly

discovered evidence; (2) clear error by the Court; or (3) a

change in the law. Accordingly, plaintiff has failed to

meet the high standard for a motion for reconsideration.

However, in order to ensure that the Court's award or

attorneys’ fees and expenses is as fair and reasonable as

possible, the Court has permitted plaintiff and the

County to submit additional declarations and arguments

and has reviewed them.

4la

B. Legal Standard for an Award of Attorneys’ Fees and

Expenses

Under 42 U.S.C. § 1988(b), district courts may award

a reasonable attorney’s fee to prevailing parties in civil

rights litigation. The statute permits an award of

“reasonable,” and not “actual” attorneys fees. Therefore

it is not sufficient for attorneys to provide the Court with

the number of hours spent and a corresponding billing

rate; attorneys requesting fees have the burden of

proving that the time spent and hourly rate are

reasonable. The Supreme Court has recognized that

district courts retain great discretion in calculating the

reasonableness of the fee award. “We reemphasize that

the district court has discretion in determining the

amount of a fee award. This 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 v.

Eckerhart, 461 U.S. 424,437 (1983).

The initial calculation is reached by determining the

“lodestar” figure, which is the number of hours

reasonably expended multiplied by a reasonable rate. See

Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir.

1992). In calculating the lodestar amount, the district

court should take into account the totality of the

circumstances, utilizing the pertinent factors set forth in

Kerr v. Screen Extras Guild, 26 F.2d 67, 70 (9th Cir.

1975), See McGrath v. County of Nevada, 67 F.3d 248,

252 (9th Cir. 1995) (citing Hensley v. Eckerhart, 461 U.S.

424, 433 (1983)); see also Robins v, Scholastic Book Fairs,

928 F.Supp. 1027, 1031 (D. Or. 1996).

When determining a reasonable number of hours,

courts should exclude hours not reasonably expended.

“Counsel for the prevailing party should exclude from a

fee request hours that are excessive, redundant, or

otherwise unnecessary, just as a lawyer in private

practice is ethically obligated to exclude hours from his

fee submission.” Gates, 987 F.2d at 1397, citing

42a

Hensley, 461 U.S. at 433-34. The moving party bears the

initial burden of documenting the appropriate hours

expended in the litigation and must submit evidence in

support of those hours worked. Id. at 433.

To set a reasonable billing rate the court must

consider the “prevailing market rates in the relevant

community” and determine what a lawyer of comparable

skill, experience and reputation would command in the

relevant community. Blum v. Stenson, 465 U.S. 886,895

n.11 (1984); see also Robins, 928 F. Supp. at 1033. It is

plaintiffs burden to produce evidence convincing the

court “that the requested rates are in line with those

prevailing in the community for similar services of

lawyers of reasonably comparable skill and reputation.”

Jordan v. Multonmah County, 799 F.2d 1262, 1266 (9th

Cir. 1986).

Once the court has computed the lodestar, the court

may make adjustments in the fee award based on the

level of success. Hensley, 461 U.S. at 434. “If. ..a

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. This will be true even where the

plaintiffs claims were interrelated, nonfrivolous, and

raised in good faith.” Id. at 435.

In a motion for attorneys’ fees, the moving party

bears the burden of establishing entitlement to an award

and demonstrating that the amount claimed is

reasonable. Hensley, 461 U.S. at 437, The burden then

shifts to the opposing party to rebut the moving party’s

evidence, Blum v, Stenson, 465 U.S., 886, 892 n. 5

(1984), The Court makes the final determination of a

reasonable award. The Civil Rights Attorneys Fees Act,

42 U.S.C., §1988 states that “the court, in its discretion,”

may allow the prevailing party “a reasonable attorney’s

fee,” “The district court is authorized under the Act to

use its discretion in awarding a reasonable attorneys fee

to the prevailing party to insure a fair result for both

parties.” Southeast Legal Defense Group v. Adams, 657

43a

F.2d 1118, 1125 (9th Cir, 1981).

In this fee litigation, plaintiffs counsel requested a

fee award that, under the totality of the circumstances

and the Kerr factors, the Court found was unreasonable.

The County had strongly objected to plaintiff's counsel’s

fee request, For example, under Kerr factor (1) the time

and labor required, the County objected that the hours

submitted by Mr. Goebel and Mr. Chesebro for recovery

were excessive, given Kerr factor (2) the novelty and

difficulty of the questions involved. See County’s

Opposition to Goebel Motion for Attorneys’ Fees at 9-11;

County’s Opposition to Chesebro Motion for Attorneys’

Fees) at 9-13, In relation to Kerr factor (5) customary fee,

the County objected to the hourly rates at which Mr.

Goebel and Mr. Chesebro sought recovery. See County’s

Opposition to Goebel Motion for Attorneys’ Fees at 6-8;

County’s Opposition to Chesebro Motion for Attorneys’

Fees; at 6-8. With regard to Kerr factor (6) whether the

fee is fixed or contingent, the County objected to the lack

of documentation of a specific fee agreement with Mr.

Schneider authorizing individuals not licensed to practice

law to assist in his case and stating whether their

payment would be on an hourly or contingent basis, See

County‘s Opposition to Chesebro Motion for Attorneys’

Fees at 11.

As described in Kerr factor (8) the amount involved

and the results obtained, the County objected to the fee

petition because the majority of claims presented by

plaintiffs counsel were rejected or dropped. The County

argued that the award of attorney’s fees should be

reduced accordingly. See County’s Opposition to Goebel

Motion for Attorneys’ Fees at 2-5; County’s Opposition to

Chesebro Motion for Attorneys’ Fees at 2-5. Under Kerr

factor (9) the experience, reputation, and ability of the

attorney, the County argued that, because Mr. Goebel

was an accomplished trial lawyer and Mr. Chesebro was

hired as an appellate lawyer, it was unnecessary for Mr.

Chesebro to join Mr. Goebel at proceedings in

preparation for the short trial on damages in 1999. The

44a

County argued that it would be excessive for the Court to

pay Mr. Chesebro for the time spent and expenses

incurred in his participation during this final phase of

the case. County’s Opposition to Chesebro Motion for

Attorneys’ Fees at 18-19. Under Kerr factor (12) awards

in similar cases, the County objected to plaintiffs

evidence. See County’s Opposition to Motion for

Reconsideration at 4- 7. Furthermore, the County

objected to Mr. Chesebro’s failure to provide the Court

with contemporaneous billing records and billing entries

to substantiate the hours for which he wished to recover

payment. See County’s Notice of Lodgement Support of

Opposition to Motion for Attorneys’ Fees, Exh. E. In

addition, the County objected to the “clustered entries”

in the records Mr. Chesebro submitted to the Court

because block billing does not provide a sufficiently

detailed account of how much time was spent on

particular tasks. See County’s Opposition to Chesebro

Motion for Attorneys’ Fees at 10, 12-15.

In this motion for reconsideration, Mr. Chesebro

misstates the record and claims that the County

conceded the reasonableness of various elements of their

motion for attorneys’ fees and expenses. Mr. Chesebro

ignores the repeated objections of the County to the fee

petition and then incorrectly argues that the Court has,

sua sponte, raised these objections. The Court notes that

during oral argument, Mr. Hill exclaimed in frustration:

“I don’t know what we can do other than jump up and

down to make it any clearer that we have raised these

objections.” Accordingly, the Court rejects plaintiff's

counsel’s assertion that the discussion in its Order

awarding attorneys’ fees is sua sponte. The Court finds

that the County’s description of plaintiff counsel’s

conduct during this litigation is accurate: “During

telephonic oral argument on the attorneys’ fee motion,

plaintiffs counsel (specifically Mr. Chesebro) repeatedly

argued that the defendants concurred in his positions or

did not oppose them. Mr. Chesebro was asked, first by

defense counsel and then by the Court, to stop

45a

misrepresenting the defendants’ position. Now the

reconsideration motion repeats those same arguments.”

County’s Opposition to the Motion for Reconsideration at 2.

II. Analysis

Because of the progress of this case, the Court has

divided it into three sections. The first phase begins when

the initial complaint was filed on December 13, 1990,

and extends through the first summary judgment motion

by defendants, the first appeal to the Ninth Circuit, and

the first trial. Phase One ends on September 22, 1995,

when the Court denied plaintiffs motion for judgment as

a matter of law and motion for a new trial. Phase Two

begins with plaintiff's second appeal to the Ninth Circuit,

and extends to the remand to this Court, on August 26,

1998. Phase Three covers time since remand to this

Court up to the conclusion of the case, on May 30, 1999.

A. Lodestar

The initial calculation of attorney’s fees under 42

U.S.C. section 1988 is reached by determining the

“lodestar” figure, which is the number of hours

reasonably expended multiplied by a reasonable rate. See

Gates v. Deukmejian, 987 F.2d 1392,1397 (9th Cir. 1992).

The court determined a separate lodestar for each of

plaintiffs two attorneys, Mr. Goebel and Mr. Chesebro.

Mr. Goebel acted as primary trial counsel in this

matter. He first met with the plaintiff on December 3,

1990, and represented plaintiff continuously since that

time. The Court awarded Mr. Goebel $167,894.85 in fees

and costs. Mr. Chesebro acted as appellate counsel in

this matter. He was initially retained by plaintiff

Schneider in August, 1992, when he agreed to consult

with Mr. Goebel. The Court awarded Mr. Chesebro

$111,089.91 in fees and costs.

1. Reasonable Number of Hours Billed

46a

a. Louis Goebel

Mr. Goebel submitted a total of 1,232.1 billable

hours for the entirety of the case. [n view of the totality of

the circumstances and the Kerr factors, the Court found

that 1209 hours billed by Mr. Goebel were reasonable.

The Court disallowed 22.5 hours billed during Phase 1 of

the case. Because the plaintiff was proceeding pro se at

this time, the Court found that allowing recovery of those

hours was not appropriate. The Court permitted recovery

for the vast majority of hours submitted by Mr. Goebel.

In making a determination on the number of hours to

award Mr. Goebel, the Court factored in the hourly rate

it set for Mr. Goebel and those working under him. In

this motion for reconsideration, Mr. Goebel does not

request that the Court allow him to recover for the 22.5

hours that the Court disallowed. The Court finds that the

following number of hours recovered by Mr. Goebel and

those working under him remains reasonable at the

hourly rates determined by the Court in this order:

[TABLE OMITTED]

2. Kenneth Chesebro

In the original motion, Mr. Chesebro submitted a

total of 1018.41 billable hours for the entirety of the case.

In view of the totality of the circumstances and the Kerr

factors, the Court approved as reasonable 882 hours for

work done by Mr. Chesebro and those working under

him. The Court based its determination of appropriate

hours on several of the County’s meritorious contentions

regarding the reasonableness of hours worked.

In its opposition papers filed in May of 1999, the

County objected to the hourly rate Mr. Chesebro

requested for his work on this case, especially since he

delegated tasks to seven individuals working under him.

See County’s Opposition to Chesebro Motion for Attorneys’

Fees at 6-9, 12. The County objected to any recovery at

all for work performed by contract lawyers and law

47a

students, since there is no evidence that Mr. Schneider

consented in writing 10 Mr. Chesebro hiring these

individuals to work on the case. See id. at 11,

Furthermore, the County objected to the large number of

hours Mr. Chesebro requested for recovery: 417 hours for

his work, 469 hours spent by contract lawyers, 79 hours

or work by law students, and 39 hours spent by

paralegals. See id. at 10-12. The County argued that

this amount of hours is excessive and duplicative, given

the fact that this case involved the appeal of a summary

judgment, the appeal of one four-day trial, and a one-day

trial on the market value of some of the vehicles from

plaintiff's lot. See id. The County objected to the block

billing and lack of contemporaneous billing entries

justifying the very large number of hours for which Mr.

Chesebro requested recovery. See id. at 12. The County

objected to Mr. Chesebro recovering for time spent in

1999 (after liability and attorneys’ fees were certain)

attending depositions, the pretrial conference, and the

trial on damages, since Mr Goebel was well qualified to

represent Mr. Schneider at these proceedings. Id. at 9-10,

18-19.

Mr. Chesebro’s pro hac vice application to appear in

the Southern District of California was not approved by

the Court until May, 1995. Mr. Chesebro provided little

or no documentation as to his fee arrangement with Mr

Schneider at the start of his involvement in the case,

except for a reference in a fax dated February 12, 1993

that a contractual fee arrangement would be drafted.

However, no such arrangement was made until

December 17, 1998, when Mr. Schneider signed a written

fee agreement. In the interim period, Mr. Chesebro

subcontracted work to seven individuals, including two

not licensed to practice law, with no written notice to Mr.

Schneider. The Court notes that, once it approves Mr.

Chesebro’s pro hac vice application, Mr. Chesebro is

required to comply with the standards of professional

conduct for the State Bar of California. See Civil Local

Rule 83.4(b) (“Every member of the bar of this court and

any attorney permitted to practice in this court shall be

48a

familiar with and comply with the standards of

professional conduct required of members of the State

Bar of California”).

With regard to Mr. Chesebro’s request to recover

payment for work performed by four contract lawyers he

hired to assist him in this case, the Rules of Professional

Conduct for the State Bar of California state that:

A member shall not divide a fee for legal

services with a lawyer who is not a partner of,

associate of, or shareholder with the member

unless:

(1) The client has consented in writing

thereto after a full disclosure has been made in

writing that a division of fees will be made and

the terms of such division; and

(2) The total fee charged by all lawyers is not

increased solely by reason of the provision for

division of fees and is not unconscionable.

CA State Bar Rules of Professional Conduct, Rule 2-200.

Mr. Chesebro did not obtain written consert from Mr.

Schneider until December of 1998, after all of the work

performed by the four lawyers he hired was completed.

The Court notes that a determination of liability (making

attorneys’ fees a certainty) also occurred in December of

1998. Rule 2-200 of the Rules of Professional Conduct of

the State Bar of California does not allow after-the-fact

consent for division of legal fees... See Rule of

Professional Conduct 1-100(0)(2) (“As to lawyers from

' Mr. Chesebro’s retainer agreement with M- Schneider,

dated December, 1998, states: “Association of cocounsel. You

understand that I have contracted, and may continue to

contract, with other attomeys for the performanc of work for

you and that I may pay part of the fees I receive under this

agreement to such attorneys for services rendered by them. All

sums payable on account of the services performed by persons

under me are payable directly to me.” Plaintiff's April 5, 1999

Notice of Lodgment, Exh. 2 at 3.

49a

other jurisdictions who are not members: These rules

shall also govern the activities of lawyers while engaged

in the performance of lawyer functions in this state.”) Mr.

Chesebro requested recovery for 469 hours of work by

contract lawyers. The County has objected to any award

of fees for these contract attorneys, as they were not

admitted pro hac vice to this court and there was no

written consent from Mr. Schneider authorizing Mr.

Chesebro to hire them before they began working on the

case. County’s Opposition to Chesebro Motion for

Attorneys’ Fees at 11. Despite the County’s objections,

the Court, exercising its discretion, decided to award

payment for 431 hours spent by the contract attorneys

as part of the reasonable attorneys’ fee for appellate work

done in this case.

Since the start of the litigation on plaintiffs motion

for attorneys’ fees, the County has objected to the lack of

a retainer agreement authorizing contract attorneys, law

students, and paralegals to assist Mr. Chesebro. See

County’ s Opposition to Chesebro Motion for Attorney’s

Fees at 11. In April of 99, the County requested

additional information regarding Mr. Chesebro’s fee

arrangement with Mr. Schneider. See County’s Notice of

Lodgment in Support of Opposition to Motion for Attorneys’

Fees, Exh. E (April 27, 1999 letter from Mr. Chesebro to

Mr. Hill containing information about the fee

arrangement and providing to Mr. Hill “the information

that [he] requested”). Mr. Chesebro requested recovery

for 587 hours of time spent by individuals he hired to

assist him in this case, which involved relatively simple

tasks: an appeal of a summary judgment and an appeal

of a four-day trial. Mr. Chesebro also requested recovery

for 417 hours for work that he did on the case. Mr.

Chesebro has not provided the Court with detailed billing

entries that would justify such a large number of hours

spent on tasks requiring a limited amount of time for

completion, nor has Mr. Chesebro provided evidence that

Mr. Schneider gave Mr. Chesebro written permission for

him to hire contract workers and bill substantial

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amounts of time for their work.?, Mr. Chesebro provided

the Court with a fee agreement between he and Mr.

Schneider, dated December, 1998, that gave Mr.

Chesebro permission to hire other attorneys. However,

this agreement was after the fact because all of the

lawyers that assisted Mr. Chesebro on the case had

already finished their work by spring of 1997. The lack

of a retainer agreement authorizing Mr. Chesebro to hire

additional lawyers (before December of 1998) is

significant given the fact that the County has objected to

the duplication of effort, the high hourly fees at which

Mr. Chesebro requests recovery, and the absence of

contemporaneous billing records and detailed billing

entries. Accordingly, the Court’s consideration of the

content and form of Mr. Chesebro’s retainer agreement

with Mr. Schneider was not sua sponte and is relevant to

Mr. Chesebro’s request to recover reasonable attorneys’

fees.

The only support that Mr. Chesebro has provided for

his fee request is a computer-generated invoice dated

March, 1999. The Court requested the raw data used to

create this invoice, such as time sheets submitted to Mr.

Chesebro by the individuals working under him.

However, Mr. Chesebro never gave the Court this

evidence. The Court’s Order awarding attorneys’ fees

explained that Mr. Chesebro has not produced

contemporaneous billing records to the Court with

detailed billing entries. Although the Court requested

contemporaneous records, these were not provided. Mr

Chesebro has not given the Court a sufficient explanation

for why there exist no original time sheets documenting

the work done by either Mr. Chesebro or the seven

individuals he hired to assist him at the time that it was

done. Presumably, there is back-up data containing the

billing entries for work performed by the contract

? “There is not one standard when one’s own clients pay.

and another standard when the taxpayers must pay.”

County’s Opposition to Motion for Reconsideration at 19.

S5la

attorneys and law students at the time they completed

this work. Since all the work performed by the contract

attorneys and law students was completed by the spring

of 1997, the Court is not persuaded that a

computer-generated invoice dated March, 1999 is a

contemporaneous billing record.

Even if the March, 1999 computer invoice is what

Mr. Chesebro considers his raw billing data, the block

billing entries in this invoice give little or no indication of

how much time was spent on particular kinds of legal

work. The invoice does not consistently separate entries

by work done, but tends to group several tasks. The

block billing entries are not sufficient to satisfy Mr.

Chesebro’s burden to demonstrate the reasonableness of

hours spent on work. See Hensley, 461 U.S. at 433 (the

moving party bears the burden of documenting the

appropriate hours expended in the litigation and must

submit evidence in support of those hours worked and

their reasonableness).

In the motion for reconsideration, Mr. Chesebro

asserts that the Court made “sua sponte criticisms” of

his billing records. This is incorrect. The County stated

in May of 1999 in its opposition briefing that it objected

to Mr. Chesebro’s “clustered entries,” which do not

provide adequate support for an award of fees. County’s

Opposition to Chesebro Motion for Attorneys’ Fees at 10.

In response to the County’s objections, on July 23, 1999,

the Court ordered Mr. Chesebro to submit original,

contemporaneous billing records, When Mr. Chesebro

failed to follow the Court’s order and simply resubmitted

the March, 1999 computer invoice, the County filed a

letter to the Court which stated: “This letter is necessary

to preclude Mr. Chesebro from arguing that our office

failed to object, and therefore waived his noncompliance

with the Court’s orders.” County’s August 3, 1999

Letter to the Court at 1. Mr. Chesebro inaccurately

claims that the County did not object to his billing

records and erroneously states that the Court sua sponte

discussed his billing records.

Although Mr. Chesebro has billing records for 1991,

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there is no written documentation of Mr. Chesebro’s

agreement to work on the case until August 24, 1992.

Therefore, the Court did not allow recovery for the 6

hours spent by Mr. Chesebro in 1991. Mr. Chesebro did

little substantive work on the case until 1993. For

instance, many early billing entries merely record reading

and analysis of cases and early court opinions. Plaintiffs

first appeal occurred during Phase One and challenged

the Court’s grant of summary judgment for the County,

and review of the record would not have been

time-intensive. The second appeal occurred during Phase

Two and followed a very brief trial, limited by the Cou

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.