Opinion
ORDER
LAWRENCE K. KARLTON, District Judge.
Plaintiffs move for attorneys' fees in the amount of $58,471. For the reasons set forth below, the motion will be granted, but in the amount of $34,201.56.
I. ATTORNEYS' FEES
Plaintiffs are generally entitled to attorneys' fees where, as here, they are the prevailing parties in a civil rights action brought pursuant to 42 U.S.C. § 1983. See 42 U.S.C. § 1988(b) ("the court, in its discretion, may allow the prevailing party... a reasonable attorney's fee as part of the costs"); Bauer v. Sampson , 261 F.3d 775, 785 (9th Cir. 2001) ("Plaintiffs in § 1983 actions should ordinarily recover an attorney's fee unless special circumstances could render such an award unjust'") (quoting Newman v. Piggie Park Enters., Inc. , 390 U.S. 400, 402 (1968)). Plaintiffs bear the initial burden "of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates." Hensley v. Eckerhart , 461 U.S. 424, 437 (1983).
Plaintiffs' fee request is broken down as follows:
* Carter White, Esq.: 38.0 hours @ $211.50 per hour = $8,037.00.
* Carter White, Esq.: 4.0 hours @ $211.50 per hour = $846.00.
This is for work on plaintiffs' reply memorandum on this attorneys' fees motion.
* Law students: 234.46 hours @ $211.50 per hour = $49,588.29.
Plaintiffs initially sought payment for 245.46 law student hours. ECF No. 542 at 9. Defendants objected that 11 of those hours were billed but not worked. ECF No. 546 at 2. Plaintiffs conceded error, and reduced the number to 234.46 law student hours. ECF No. 550 at 1.
Plaintiffs initially sought case expenses of $3,292.30. ECF No. 542 at 9. Defendants objected that the expenses were not supported by any receipts or other documentation. ECF No. 546 at 7-8. Plaintiffs, without comment, dropped their request for case expenses.
Defendants do not challenge plaintiffs' entitlement to fees. They do however, argue that the amount plaintiffs seek should be reduced.
A. Billing Rate.
Plaintiffs are incarcerated prisoners, and therefore the fees they may seek for this litigation are limited by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. Martin v. Hadix , 527 U.S. 343, 350 (1999) (the PLRA "places a cap on the size of attorney's fees that may be awarded in prison litigation suits"). That statute provides:
(1) In any action brought by a prisoner who is confined to any jail, prison, or other correctional facility, in which attorney's fees are authorized under [42 U.S.C. § 1988], such fees shall not be awarded, except to the extent [authorized here]...
(3) No award of attorney's fees in an action described in paragraph (1) shall be based on an hourly rate greater than 150 percent of the hourly rate established under section 3006A of Title 18 for payment of court-appointed counsel.
42 U.S.C. § 1997e(d). Thus:
The [PLRA] caps attorney fees authorized under 42 U.S.C. § 1988 at 150 percent of the "rate established" by the Criminal Justice Act, 18 U.S.C. § 3006A, "for payment of court-appointed counsel." 42 U.S.C. § 1997e(d)(3).
Perez v. Cate , 632 F.3d 553, 554 (9th Cir. 2011).
In turn, 18 U.S.C. § 3006A provides that the hourly rate shall be determined by the Judicial Conference of the United States in conformity with a formula set forth in the statute. 18 U.S.C. § 3006A(d)(1); Perez , 632 F.3d at 555. The Judicial Conference, in its turn, has established the following maximum rates in these cases:
If services were performed The maximum hourly between... rate is... 03/01/2014 to present $126 09/01/2013 through 02/28/2014 $110 01/01/2010 through 08/31/2013 $125 03/11/2009 through 12/31/2009 $110 01/01/2008 through 03/10/2009 $100
7 Guide to Judiciary Policy § 230.16. Thus, the baseline rate - the rate before the multiplier (no more than 150%) is applied - depends on the year the services were performed, and ranges from $100 to $126. Indeed, plaintiffs correctly argue (as do defendants) that the proper "baseline" rate for fees under the CJA is the one set by the Judicial Conference. See Plaintiffs' Motion for Attorney's Fees ("Motion") (ECF No. 542) at 6.
This document is available at www.uscourts.gov/FederalCourts/AppointmentOfCounsel/CJAGuidelines Forms/vol7PartA/vol7PartAChapter2.aspx#230_16 (last visited by the court on July 25, 2014).
However, plaintiffs do not request the fees established by the Judicial Conference. Indeed, they do not even make reference to the published, publicly available, maximum baseline rates established by the Judicial Conference, the agency charged by law with making that determination. Instead, plaintiffs seek a baseline rate of $141. Motion at 6.
Plaintiffs request this baseline rate based upon an e-mail they say they received from an "Attorney Advisor" of the Defender Services Office of the Administrative Office of the U.S. Courts, to a person apparently associated in some way with Prisoners Legal Services of Boston, MA. ECF No. 542-1 at 9 ("the authorized CJA hourly non-capital rate for fiscal years 2011, 2012 and 2013 was $139, " but was increased in January 2014 "from $139 to $141"). The Attorney Adviser states, in the e-mail, that "[t]here is no public document that lists these authorized rates, " indicating that discovering the baseline rate is a secret, mysterious process available only through private correspondence with the Defender's Office. See ECF No. 542-1 at 9. However, the e-mail makes no reference to the public document that is available from the Judicial Conference on its public website, and which expressly sets forth the baseline rates.
See Motion at 6 ("The proper baseline rate for fees under the CJA is currently 141 dollars (see Office of Court Administration material attached to Declaration of C. White)"); March 28, 2014 Declaration of Carter White ("White Decl. (X-XX-XXXX)") (ECF No. 542-1) ¶ 15 ("The hourly rate authorized by the Judicial Conference on which the PLRA hourly rate is calculated is not made available in any published or generally-available online source and must be obtained via correspondence with the Administrative Office of the Courts").
Moreover, plaintiffs offer no evidence that the Attorney Adviser speaks for the Judicial Conference, the Administrative Office of the U.S. Courts, or even the Defenders Services Office. Nor do they offer any evidence or legal citation indicating that the Attorney Adviser can overrule the official, publicly available Judicial Conference determination on this matter which, to repeat, can be found at (Vol.) 7 Guide to Judiciary Policy § 230.16, and is available on the public Judicial Conference website, cited above. For these reasons alone, the court will give no weight whatever to the e-mail cited by plaintiffs, as the sole initial support of their assertion that the baseline rate is $141.
The court notes that the Administrative Office of the U.S. Courts is "under the supervision and direction of the Judicial Conference of the United States, " 28 U.S.C. § 604, and not the other way around. Thus it is not obvious that informal correspondence from this Attorney Adviser - which itself does not cite any basis for the views expressed there - could override the official, published determination of the Judicial Conference, the entity charged by statute with this determination.
In their Opposition, defendants correctly pointed out that the rate authorized by the Judicial Conference is set forth at 7 Guide to Judiciary Policy § 230.16. Defendants' Opposition to Plaintiffs' Motion for Attorney's Fees ("Opposition") (ECF No. 546) at 3-4 & 3 n.3. For reasons they do not explain however, defendants did not use the rates published by the Judicial Conference. Rather, they use rates referred to in the March 20, 2013 Congressional testimony of Hon. Julia Gibbons, which she gave in her role as the Chair of the Committee on the Budget of the Judicial Conference of the United States. Id., at 3 n.3. However, that is the same baseline rate (for some of 2014, in any event), that the Judicial Council authorized, namely $126 per hour.
1. Judge Gibbons.
In their Reply, plaintiffs turn to the March 18, 2010 Congressional testimony of Judge Gibbons. See Reply at 2 & 2 n.2. Plaintiffs argue that the baseline rate is the $141 rate because "[i]n March 2010, the Judicial Conference requested that Congress increase the non-capital CJA rate to the statutorily authorized rate of $141 per hour, effective January 1, 2011.'" Reply at 2 (quoting the testimony of Judge Gibbons).
The testimony is available at http://www.uscourts.gov/News/Viewer.aspx?doc=/uscourts/News/2010/ docs/Judge_Gibbons_Judicial_Conference.pdf (last visited by the court on July 25, 2014).
In other words, after initially asserting that the baseline rate was determined through private correspondence with the Defender's Office, they now assert that the rate is determined by poring through Congressional testimony. However, plaintiffs do not explain how Congressional testimony, even from Judge Gibbons, could override the official, published determination of the Judicial Conference itself. Even if poring through this testimony is the proper way to determine the baseline rate, plaintiffs do not explain why we should not use Judge Gibbons's more recent testimony:
Panel attorney rates as of March 1, 2014, are $126 per hour for non-capital work and $180 per hour for capital work.
March 26, 2014 Congressional Testimony of Hon. Julia Gibbons.
Available at http://news.uscourts.gov/sites/default/files/Judge-Gibbons_2015-Budget.pdf (last visited by the court on July 25, 2014).
Moreover, even assuming that $141 is the "statutorily authorized rate, " plaintiffs' argument is predicated upon a false choice. According to plaintiffs, the baseline is not determined by the rate Congress appropriates funds for, but rather by the amount authorized by statute. Reply at 4. Although plaintiffs are correct on one level, they omit the critical second step here, which is that the amount "authorized by statute" is left to the Judicial Conference to determine. See 18 U.S.C. § 3006A(d) ("the Judicial Conference is authorized to raise the maximum hourly rates specified in this paragraph"). Thus, the amount authorized by statute, for purposes of determining the baseline amount, is the amount actually determined by the Judicial Conference, not the theoretical amount the Judicial Conference could raise it to, or the amount that the Judicial Conference asked the Congress to fund. Equally important, it is a rate that is determined by reference to official, public documents that are easily accessible by the parties and this court, not by going through secret channels, by means of private e-mail communications, by interpreting random pieces of paper (see below), and by poring over Congressional testimony.
Judge Gibbons also testified:
Judge Gibbons further testified:
The Ninth Circuit, in Perez, confirmed the Judicial Conference rate by referencing the "Report of the Proceedings of the Judicial Conference of the United States (Sept. 19, 2000), " which is available on the Judicial Conference's publicly available website. Perez, 623 F.3d at 555 n.1 ("the Defender Services Committee of the Judicial Conference recommended a rate of $113, and the full Conference ratified this recommendation"). The Ninth Circuit was able to find this rate apparently without receiving any private e-mails from the Defender Services Office, or poring through congressional budget testimony. The Report of the Proceedings of the Judicial Conference for September 2000 is a public document, available from the Judicial Conference's website. See also, Madrid v. Gomez , 190 F.3d 990, 994 (9th Cir. 1999) (finding the baseline rate is the one set by the Judicial Conference).
2. 2014 Budget Justification.
Plaintiffs next turn to two pieces of paper which they assert is "an excerpt from the Fiscal Year 2014 Judiciary Congressional Budget Justification." Exhibit 3 (ECF No. 550-1 at 36-37) of the April 28, 2014 Declaration of Ernest Galvan ("Galvan Decl. (X-XX-XXXX)") (ECF No. 550-1) ¶ 6. The only information plaintiffs offer about these pages is that they were received "by email from the Defenders Service." Gavan Decl. (X-XX-XXXX) ¶ 6. The court is not informed who the author of the pages is, whether the pages are authentic, whether they are part of a draft or final version of something, whether they were ever submitted to Congress or anyone else, whether the language was approved by the Judicial Conference or possibly the Administrative Office, where the full document can be found, or anything else about these pages. These two random pieces of paper are simply not anything that this court can use in making a judicial determination. Moreover, even if plaintiffs have properly interpreted these pages to mean that the maximum baseline rate is $141 (and this is not at all clear), they have provided no basis for this court to find that these pages override the official, published determination of the Judicial Conference, that the maximum baseline rate for 2014 is $110 or $126, depending upon when the work was performed.
3. Webb v. Ada County.
Plaintiffs argue that "what matters is not the amount that Congress approves, but the amount that the statute actually authorizes" (Reply at 4), citing Webb v. Ada County, 285 F.3d 289 (9th Cir.), cert. denied, 537 U.S. 948 (2002). Defendants take no issue with this. However, it does not in any way support plaintiffs' $141 figure.
The amount the statute "actually authorizes" is the amount determined by the Judicial Conference:
The Judicial Conference shall develop guidelines for determining the maximum hourly rates.... Not less than 3 years after the effective date of the Criminal Justice Act Revision of 1986, the Judicial Conference is authorized to raise the maximum hourly rates specified in this paragraph up to the aggregate of the overall average percentages of the adjustments in the rates of pay under the General Schedule made pursuant to section 5305 of title 5 on or after such effective date. After the rates are raised under the preceding sentence, such maximum hourly rates may be raised at intervals of not less than 1 year each, up to the aggregate of the overall average percentages of such adjustments made since the last raise was made under this paragraph.
18 U.S.C. § 3006A(d) (emphases added). Nothing in the statute indicates that the amount authorized is the amount of funding the Judicial Conference requests, nor the amount that the Judicial Conference would like to pay attorneys if it had sufficient funding. Rather, it is the amount the Judicial Conference actually determines, using its guidelines. Those guidelines establish rates of $100 to $126 from 2008 to 2014. 7 Guide to Judiciary Policy § 230.16.
Plaintiffs seem to interpret Webb to say that the rate level the Judicial Conference could have sought over the years in its budget testimony before Congress is the rate that governs here. Reply at 2. But that is not what Webb teaches. Rather, that case holds that the rate the Judicial Conference determines is what governs, even if funds are not available to actually pay that amount:
The PLRA expressly provides for payment at the rate "established" under 18 U.S.C. § 3006A. 42 U.S.C. § 1997e(d)(3). The Judicial Conference determined that a rate of $75 per hour for the District of Idaho was justified. Section 1997e(d)(3) makes no distinction between the amount authorized by the Judicial Conference and the amount actually appropriated by Congress to compensate court-appointed counsel in criminal proceedings.
Webb, 285 at 839 (emphasis added).
B. Entitlement to Fees.
Although plaintiffs are plainly entitled to attorneys' fees - a proposition not disputed by defendants - they have utterly failed to establish at what rate they should be paid. Not only do they make no reference to the rates established by the Judicial Conference, they actually direct the court's attention away from that determination in favor of an e-mail from the Defenders Office, Congressional testimony, and seemingly random pieces of paper sent to them by e-mail from an unknown person at the "Defender Services." Accordingly, the court would be justified in denying fees entirely based upon plaintiffs' motion.
However, since defendants do not dispute that plaintiffs are entitled to fees, the court will award fees in accordance with the calculations offered by defendants, which at least have a demonstrable relationship to the applicable law. Defendants request that the clinic law students be paid at the baseline rate for each year, and that Carter White be paid at 150% of the baseline. Both requests are supported by the applicable law. See 7 Guide to Judiciary Policy § 230.16 (establishing the maximum baseline rates); 42 U.S.C. § 1997e(d)(e) (establishing that the maximum fees are 150% of the baseline rates). These figures are as follows:
As noted, defendants also, and for unexplained reasons, rely on Judge Gibbons's congressional testimony, although they at least acknowledge the existence of the Judicial Conference's published maximum baseline rates. However, to the degree the numbers defendants use are not the official numbers, they are slightly higher, and thus inure to plaintiffs' benefit. Since defendants are willing to use these numbers, the court will acquiesce.
Carter White Clinic Law Students 2008: $169.50 (150% of $113) $113 2009: $177.00 (150% of $118) $118 2010: $213.00 (150% of $142) $142 2013: $189.00 (150% of $126) $126 2014: $189.00 (150% of $126) $126
Based on these rates, and the hours documented by plaintiffs, defendants' counsel represents that total fees to plaintiffs are $34,201.56. Opposition at 7. The court accepts defendants' representation, which is not disputed by plaintiffs, and will award that amount in attorneys' fees to plaintiffs.
Plaintiffs assert that baseline fees of $141 and $142 were paid by defendants in Coleman v. Brown, 90-cv-520 LKK (E.D. Cal.), pursuant to "settlement agreements approved by the Attorney General and the Coleman Court." April 28, 2014 Declaration of Ernest Galvan (ECF No. 550-1 at 1-4) ¶¶ 4 & 5. Plaintiffs do not, however, direct the court to any specific court filings in the case that would support their assertion, even though there are over 5, 000 court filings in that case. The court's own search has turned up no orders confirming the $141 or $142 rate. (The four filings turned up in the court's own search were about compensation for non-lawyers. See Coleman v. Brown, ECF Nos. 3906, 3997, 4029 and 4093.) Even if such documents and orders could be found, stipulations by the parties to pay attorneys' fees at a given rate are not relevant to the disputed rate determination of this case.
C. Stay Pending Appeal.
Defendants request a stay of payment of any attorneys' fees until the proceedings on appeal are resolved. Opposition at 8. However, defendants have not advised the court of their compliance with Fed.R.Civ.P. 62(d) ("appellant may obtain a stay [on appeal] by supersedeas bond"). See ACLU of Nevada v. Masto , 670 F.3d 1046, 1066 (9th Cir. 2012) ("[h]ad the State complied with the express requirements of Rule 62(d) by appealing the underlying fees order and posting a supersedeas bond with the district court, it would have been entitled to a stay as a matter of right"). Accordingly, the request will be denied without prejudice to its renewal.
II. CONCLUSION
For the reasons set forth above, the court orders as follows:
1. Plaintiffs' motion for attorneys' fees is GRANTED, and such fees shall be paid to plaintiffs' counsel by defendants, in the total amount of $34,201.56;
2. Defendants' request for a stay of payment is DENIED without prejudice to its renewal under Fed.R.Civ.P. 62(d), or (if they believe this rule is inapplicable or not mandatory), pursuant to a motion otherwise explaining their entitlement to a stay.
IT IS SO ORDERED.
The CJA authorized the Judicial Conference to implement annual cost-of-living adjustments (COLAs) to panel attorney rates, subject to congressional funding. If the statutory COLAs provided to federal employees (the base employment cost index component only) had been provided to panel attorneys on a recurring, annual basis since 1986, the authorized noncapital hourly rate for fiscal year 2011 would be $141.
Gibbons Testimony (3-18-2010) at 14 (emphasis added).
This $15 per hour increase represents a significant step in closing the gap between the previous $110 rate and the statutorily authorized rate of $141 per hour rate that we are seeking for 2011.
March 18, 2014 Testimony of Judge Gibbons at 13 (emphasis added).