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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 949

## Text

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.

ii

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

iv

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.
ee

(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

=

2

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.

4

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.

6

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.”).

7

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.

eT
a

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.

9

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

10

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

11

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

12

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.

b]

© after the final fee motion was filed, the district court
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

14

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

15

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.

16
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).

17

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]

18

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

2

19

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

20

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,

21

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, Ҥ 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

23

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

24

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

25

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-

26

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 >

27

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

28

. .. 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.

29

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

la

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.
7

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.

2a

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

3a

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).

4a

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

5a

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.

6a

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.

Ta

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.

8a

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

9a

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_0259%3A1. Public record. Not legal advice.