Majority Found Appeal Notice Encompassed Fee Award, But Dissent Did Not Agree And Found Plaintiffs Did Not Provide Hourly Rate Evidence In The Right Time Period And For FOIA Cases.
Hiken v. Department of Defense, No. 13-17073 (9th Cir. Sept. 6, 2016) (published) is a situation where magistrates, district judges, and the Ninth Circuit dealt with a fee award to winning plaintiffs in a Freedom of Information Act (FOIA) case, which has a fee-shifting statute allowing fees to a substantially prevailing party under 5 U.S.C. § 552(a)(4)(E).
Plaintiffs moved for fees of $381,633.39 based on its current billing rates, with the government opposing based on lower prevailing market rates ($200 versus the much higher current billing rates claimed by plaintiffs). The district judge eventually granted the lower $200 hourly rate, awarding $180,520 after one district judge went with the lower hourly rates and a magistrate judge went with higher rates. The Ninth Circuit, in a 2-1 opinion, remanded for a “re-do,” over the dissent of Circuit Judge Rawlinson.
Plaintiffs first had to surmount a jurisdictional hurdle that the appeal dealt with post-fee order events rather than an appeal from the fee award itself. The majority liberally construed the notice, while the dissent would have gone the other way.
On the merits, the majority believed the district judge had relied on stale decisions on the prevailing hourly market rates under the lodestar analysis as well as decided plaintiffs were entitled to fees on appeal. Circuit Judge Rawlinson believed that the district judge did not commit error by relying on government hourly rate information because plaintiff never put in relevant hourly rate evidence for the pertinent time period and for FOIA cases. Remanded for a “re-look.”
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