Rick Carter v. Caleb Brett LLC, et al

Filing

Filed amended opinion (ARTHUR L. ALARCON, RICHARD C. TALLMAN and SANDRA S. IKUTA) (ALA authoring) We conclude that the district court did not explain its decision to reduce Carter s fee request with sufficient specificity to allow us to review the reasonableness of the fee award. We therefore VACATE and REMAND this matter to the district court with instructions to reconsider the amount of the fees it awarded Appellant and articulate the basis for its fee determination with greater specificity. Each party shall bear its own costs on appeal. [9008106]

Case: 12-16846

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ID: 9008106

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICK O. CARTER,
Petitioner-Appellant,
v.

No. 12-16846
D.C. No.
3:11-cv-01472RS

CALEB BRETT LLC; LIBERTY
MUTUAL INSURANCE COMPANY,
Respondents-Appellees.

AMENDED
OPINION

Appeal from the United States District Court
for the Northern District of California
Richard Seeborg, District Judge, Presiding
Submitted January 15, 2014*
San Francisco, California
Filed February 3, 2014
Amended March 10, 2014
Before: Arthur L. Alarcón, Richard C. Tallman,
and Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Alarcón

*

The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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CARTER V. CALEB BRETT LLC
SUMMARY**

Attorneys’ Fees
The panel vacated the district court’s order awarding
attorneys’ fees and costs, and remanded for the district court
to articulate the basis for its fee determination with greater
specificity.
The panel held that the district court erred as a matter of
law by reducing the fee award without sufficiently explaining
its rationale for the reduction.

COUNSEL
Eric Aaron Dupree, Dupree Law APLC, Coronado,
California; Joshua Thomas Gillelan, II, Longshore Claimants’
National Law Center, Washington D.C., for
Petitioner–Appellant.
John R. Walker, Kelley Kronenberg, Houston, Texas, for
Respondents–Appellees.

**

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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OPINION
ALARCÓN, Senior Circuit Judge:
Rick Carter appeals from the district court’s order
awarding him $14,268.50 in attorneys’ fees and costs on his
fee petition in the amount of $22,585. We have jurisdiction
under 28 U.S.C. § 1291. Carter contends that the district
court erred as a matter of law by reducing the fee award
without sufficiently explaining its rationale for the reduction.
We agree. Accordingly, we vacate and remand this matter to
the district court with instruction to articulate the basis for its
fee determination with greater specificity.
I
“[T]he district court has discretion in determining the
amount of a fee award.” Hensley v. Eckerhart, 461 U.S. 424,
437 (1983). But “[i]t remains important . . . for the district
court to provide a concise but clear explanation of its reasons
for the fee award.” Id. at 437, 438–39 (holding that the court
was “unable to affirm the [fee award] . . . because the District
Court’s opinion did not properly consider the relationship
between the extent of success and the amount of the fee
award” or “answer the question of what is ‘reasonable’ in
light of that level of success”). When determining a
reasonable fee award under a federal fee-shifting statute such
as the Longshore Act, a district court must first calculate the
lodestar by multiplying the “number of hours reasonably
expended . . . by [the] reasonable hourly rate.” Van Skike v.
Dir., Office of Workers’ Comp. Programs, 557 F.3d 1041,
1046 (9th Cir. 2009) (citing Tahara v. Matson Terminals,
Inc., 511 F.3d 950, 955 (9th Cir. 2007)).

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“This Circuit requires that courts reach attorneys’ fee
decisions by considering some or all of twelve relevant
criteria set forth in Kerr v. Screen Extras Guild, Inc.,
526 F.2d 67 (9th Cir. 1975).” Quesada v. Thomason,
850 F.2d 537, 539 (9th Cir. 1988).
The Kerr 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 acceptance of the case; (5) the
customary fee; (6) whether the fee is fixed or
contingent; (7) time limitations imposed by
the client or the circumstances; (8) the amount
involved and the results obtained; (9) the
experience, reputation, and ability of the
attorneys; (10) the “undesirability” of the
case; (11) the nature and length of the
professional relationship with the client; and
(12) awards in similar cases.
Id. at 539 n.1. “A mere statement that a court has considered
the Kerr guidelines does not make a decision within the
court’s discretion.” Id. at 539. Rather, the “court must
‘articulate with sufficient clarity the manner in which it
makes its determination.’” Id. (quoting Chalmers v. City of
L.A., 796 F.2d 1205, 1211 (9th Cir. 1986), amended by
808 F.2d 1373 (9th Cir. 1987)). While detailed calculations
are not mandated, “something more than a bald, unsupported
amount is necessary” to affirm an award of attorneys’ fees.
Chalmers, 796 F.2d at 1211 n.3. In Moreno v. City of
Sacramento, 534 F.3d 1106 (9th Cir. 2008), we explained that

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[w]hen the district court makes its award, it
must explain how it came up with the amount.
The explanation need not be elaborate, but it
must be comprehensible. . . . Where the
difference between the lawyer’s request and
the court’s award is relatively small, a
somewhat cursory explanation will suffice.
But where the disparity is larger, a more
specific articulation of the court’s reasoning
is expected.
Id. at 1111 (emphasis added); see also Brewster v. Dukakis,
3 F.3d 488, 493 (1st Cir. 1993) (“As a general rule, a
fee-awarding court that makes a substantial reduction in
either documented time or authenticated rates should offer
reasonably explicit findings . . . .”).
The district court must also “explain how it arrived at its
determination with sufficient specificity to permit an
appellate court to determine whether the district court abused
its discretion in the way the analysis was undertaken.”
McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir.
2009) (citing Chalmers, 796 F.2d at 1211).
II
The district court’s selection of a blended hourly rate of
$400, combined with its reduction in the number of
compensable hours by almost half, from 60.9 to 35 hours,
resulted in Carter receiving a 37 percent reduction in fees:
from $22,585 to $14,268.50. In its fee order, the district court
identified the twelve Kerr factors and mentioned two that it
considered most relevant: (1) “the disproportionate
relationship between the amount of fees incurred

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($22.585.00) and the amount at stake in the litigation
($3,220.20)”; and (2) that “Carter [did] not bear primary
responsibility for the fact that this matter became
considerably more protracted than the ‘quick and inexpensive
mechanism’ envisioned by the statute.” Beyond that very
brief discussion, however, the district court offered no other
analysis before concluding that “[u]nder the circumstances
here, for purposes of fee-shifting, 35 hours of attorney time
at a blended hourly rate of $400 is reasonable.”
In Costa v. Commisioner of Social Security
Administration, 690 F.3d 1132 (9th Cir. 2012), where a
magistrate judge “reduced the number of hours compensated
by nearly one-third, [from 60.5 hours] to 41.1 hours,” we held
that “[u]nder Moreno, the magistrate judge was required to
provide relatively specific reasons for making such
significant reductions.” Id. at 1134, 1136. Here, the district
court judge reduced the compensable hours by almost half.
We conclude that the judge was required to provide more
specific reasons for making such a significant reduction.
Additionally, the district court appears to have averaged
the senior counsel rate of $500 and the associate rate of $300
to reach its blended hourly rate of $400. That approach is
difficult to understand given that the associate, who billed at
the lower rate, billed nearly three times as many hours as the
two more senior counsel. Further, it appears that the district
court may not have considered the paralegal rate of $150
when calculating its blended rate, even though the two
paralegals expended a total of 6.9 hours on the matter. See,
e.g., United Steelworkers of Am. v. Phelps Dodge Corp.,
896 F.2d 403, 407 (9th Cir. 1990) (holding that “the district
court abused its discretion in determining that $100 was the
appropriate rate at which to award fees” where evidence

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produced by the plaintiffs supported a market rate between
$125 and $160 per hour).
Equally opaque are the district court’s reasons for
concluding that “35 hours of attorney time was reasonable”
or why 25.9 hours of attorney time (32.8 hours including the
paralegals’ time) were entirely non-reimbursable. We held in
United Steelworkers that “[w]ithout an indication from the
district court,” we were “unable to review the district court’s
determination of the number of hours reasonably expended on
the litigation.” Id. at 406–07. While the district court here
mentioned two Kerr factors (the disparity between the fees
incurred and the amount at stake and CB’s primary
responsibility for the protracted litigation), it did not explain
with sufficient detail how these factors bore on the ultimate
fee award. See Cunningham v. City of L.A., 879 F.2d 481,
485 (9th Cir. 1988).
Here, Carter’s fee award was reduced by 37 percent, far
more than the 20 to 25 percent reduction in Costa. In this
circumstance, Costa requires the district court “to provide
relatively specific reasons for making such significant
reductions.” Costa, 690 F.3d at 1136. The district court may
have very good reasons for believing the reductions in the fee
award were appropriate, but if that is the case, “it must
explain why.” Moreno, 534 F.3d at 1113.
Conclusion
We conclude that the district court did not explain its
decision to reduce Carter’s fee request with sufficient
specificity to allow us to review the reasonableness of the fee
award. We therefore VACATE and REMAND this matter
to the district court with instructions to reconsider the amount

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of the fees it awarded Appellant and articulate the basis for its
fee determination with greater specificity. Each party shall
bear its own costs on appeal.

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