Civil Rights: $137,502.46 Supplemental Fee Award Affirmed In Favor OF Monthly Prison Magazine Publisher

Ninth Circuit Disagrees with Seventh Circuit Over Fee Recovery for Compliance Activities and Also Reject That Laffey Matrix Had to Be Used in Determining Reasonable Hourly Rates.

     Prison Legal News v. Schwarzenegger, Case No. 09-15006 (9^th Cir. June 9, 2010) (for publication) is an interesting Ninth Circuit decision regarding what fees are awardable under a civil rights settlement reserving fee recovery for post-settlement monitoring activities and whether the Laffey matrix (Laffey v. Northwest Airlines, Inc., 572 F.Supp. 354 (D.D.C. 1983), aff’d & rev’d in part, 746 F.2d 4 (D.C. Cir. 1984) must be used to determine reasonable hourly rates with respect to amount of fees awarded.   

     Here are the facts: After suing for violations of the First and Fourteenth Amendments based on allegations that the California Department of Corrections and Rehabilitations (CDCR) and certain state officials unreasonably curtailed distributions of its monthly prison magazine, plaintiff publisher of the monthly news magazine entered into a settlement agreement with defendants by which certain attorney’s fees were stipulated to (not in dispute), a first post-settlement amount of fees were awarded (not in dispute), and a second post-settlement amount of fees/costs were awarded under 42 U.S.C. § 1988 (the federal civil rights statute) in the amount of $137,502.46 out of a requested $143,322.96 (the contested fee award). The settlement agreement did allow for post-settlement compliance fees and expressly reserved jurisdiction for fee determinations. State officials appealed the latest $137,502.46 fee award.

     They generally lost, except for remand on a limited duration issue.

Although challenging fee entitlement under section 1988, the Ninth Circuit found post-settlement compliance/monitoring fees were allowable under Keith v. Volpe, 833 F.3d 850, 855-57 (9^th Cir. 1987). The Ninth Circuit, in doing so, disagreed with the Seventh Circuit’s analysis in Alliance To End Repression v. City of Chicago, 356 F.3d 767 (7^th Cir. 2004), which held that monitoring activities are not compensable under section 1988.

     The opinion then focused on the state officials’ challenges to the reasonableness of the fees that were awarded. First, the Ninth Circuit found no fault with the district judge awarding 2008 hourly rates for 2007 work in lieu of making an interest adjustment in the hourly rates. (Welch v. Metro. Life Ins. Co., 480 F.3d 942, 947 (9^th Cir. 2007).) Second, the federal court of appeals rejected individual appellants’ suggestion that the D.C.-based Laffey matrix should have been used in determining the reasonable hourly rates for plaintiff’s attorneys. The Ninth Circuit stated “it is questionable whether the matrix is a reliable measure even in Alexandria, Virginia, just across the river from the nation’s capital,” much alone reliable for determining hourly rates 3,000 miles away. (Citing Robinson v. Equifax Info Servs. LLC, 560 F.3d 235, 245 (4^th Cir. 2009).) Finally, the Court rejected the notion that much lower hourly rates applicable under the Prison Litigation Reform Act applied, because this was not a prisoner action (but one by a monthly prison magazine publisher). Beyond that, the proper legal community for purposes of pegging rates was the Northern District of California general federal litigation arena.

     However, the Ninth Circuit did vacate and remand so that the state officials could develop a record for when the district court’s jurisdiction for compliance should terminate, wanting to avoid a situation where state officials’ fee exposure went on indefinitely.