Marguerite Hiken, et al v. Department of Defense, et al

Filing

FILED OPINION (WILLIAM A. FLETCHER, JOHNNIE B. RAWLINSON and BARRINGTON D. PARKER, JR.) VACATED; REMANDED. Judge: JBR Dissenting, Judge: BDP Authoring. FILED AND ENTERED JUDGMENT. [10112542]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGUERITE HIKEN; THE
MILITARY LAW TASK FORCE,
Plaintiffs-Appellants,

No. 13-17073
D.C. No.
4:06-cv-02812-YGR

v.
DEPARTMENT OF DEFENSE;
UNITED STATES CENTRAL
COMMAND,
Defendants-Appellees.

OPINION

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Argued and Submitted November 20, 2015
San Francisco, California
Filed September 6, 2016
Before: William A. Fletcher, Johnnie B. Rawlinson,
and Barrington D. Parker, Jr.*
Opinion by Judge Parker;
Dissent by Judge Rawlinson

*

The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the
U.S. Court of Appeals for the Second Circuit, sitting by designation.

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HIKEN V. DEP’T OF DEFENSE
SUMMARY**

Attorneys’ Fees
The panel vacated the district court’s initial attorneys’ fee
award to plaintiffs under 5 U.S.C. § 552(a)(4)(E) after
plaintiffs substantially prevailed in a Freedom of Information
Act action brought against the federal government, and
remanded for recalculation of attorneys’ fees.
The district court on initial review awarded plaintiffs
attorneys’ fees calculated at $200/hour, which was well
below the current billing rates for its attorneys. The district
court, upon a motion to reconsider, determined that the first
judge had not erred in awarding only $200 an hour.
The panel held that notwithstanding plaintiffs’ failure to
designate for appeal the district court’s underlying fee order,
plaintiffs’ intent to appeal the underlying fee award was
apparent from both the factual circumstances and plaintiffs’
extensive briefing on the issue. The panel exercised its
discretion, and considered the merits of the underlying fee
award.
The panel held that consistent with its burden, plaintiffs
provided substantial evidence of the prevailing market rate
for the applicable periods, and this evidence was properly
submitted to the district court. The panel further held that in
determining that prevailing market rate, the district court

**

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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relied on authority that was not apposite, and failed to provide
a requisite clear explanation for the fee award.
Finally, the panel held that plaintiffs fell within the class
of litigants entitled to attorneys’ fees on appeal, and may
request attorneys’ fees on appeal in accordance with Ninth
Circuit Rule 39-1.6.
Judge Rawlinson dissented because she would hold that
plaintiffs did not timely appeal the underlying fee award, and
that the district court acted within its discretion in calculating
the fee award. She would affirm the district court.

COUNSEL
Colleen Flynn (argued), Los Angeles, California; W. Gordon
Kaupp, Arce Law Group PC, New York, New York; Chris
Ford, Law Office of Chris Ford, Phoenix, Arizona; for
Plaintiffs-Appellants.
Gerard Sinzdak (argued), H. Thomas Byron III, and Dara S.
Smith, Civil Division, Department of Justice, Washington,
D.C.; for Defendants-Appellees.

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OPINION

PARKER, Senior Circuit Judge:
In February 2012, Plaintiffs-Appellants Marguerite Hiken
and the Military Law Task Force (together, “MLTF”)
substantially prevailed in a Freedom of Information Act
(“FOIA”) action brought against Defendants-Appellees the
Department of Defense and United States Central Command
(together, the “Government”). In June 2012, MLTF filed a
motion for attorney fees pursuant to 5 U.S.C. § 552(a)(4)(E),
requesting that the court award it fees consistent with the
current billing rates for its attorneys. MLTF submitted
evidence relating to the prevailing historical market rate for
the pertinent geographic locations and time period, but did
not argue for any fees except the current billing rates for its
attorneys. Among other things, the Government argued that
MLTF was only entitled to fees based on the prevailing
market rate, which the Government argued was $200 an hour.
The district court (Ware, C.J.) granted the motion in part,
awarding MLTF attorney fees calculated at $200 an hour,
which was well below the current billing rates for its
attorneys.
MLTF moved to alter or amend the judgment. The
Magistrate Judge to whom the motion was assigned
determined that the district court had erred in failing to
consider MLTF’s evidence of the prevailing market rate, and
recommended an award higher than that ordered by the
district court.
The district court (Rogers, J.), upon the Government’s
motion to consider the issue de novo, determined that the first
judge had not erred in awarding only $200 an hour. The

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district court pointed out that MLTF had not argued for any
rate except its attorneys’ current billing rate, and thus took the
risk that the court would reject the higher billing rate and
accept the Government’s proposed billing rate. The district
court held that MLTF was not entitled to raise a new
argument on its motion to amend the judgment. MLTF
appealed. For the reasons set forth, we VACATE the district
court’s initial fee award and REMAND the case for further
proceedings consistent with this opinion.
BACKGROUND
A. MLTF Successfully Sues the Government Under FOIA
Military Law Task Force is a subcommittee of the
National Lawyers Guild that addresses military law issues.
Marguerite Hiken is the co-chairperson of MLTF. In March
2005, MLTF made a request pursuant to FOIA, seeking
information from the Government relating to an incident in
Iraq involving an Italian journalist, and other information
relating to the Rules of Engagement in effect during the U.S.
military’s involvement in Fallujah, Iraq. The Department of
Defense (“DOD”) referred MLTF to United States Central
Command (CENTCOM), which in turn acknowledged receipt
of MLTF’s request and subsequently denied the request in
August 2005. MLTF appealed the denial to DOD. After
DOD informed MLTF that it would not be able to complete
the appeal process within the time limit set by FOIA, MLTF
commenced this action seeking disclosure of the documents.
At the outset of the litigation, DOD contended that it had
diligently searched its records and uncovered responsive but
confidential documents. At MLTF’s urging, DOD conducted
further review and ultimately located an additional number of

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responsive documents.
Redacted versions of those
documents were produced to MLTF. In October 2007, the
parties cross-moved for summary judgment, and the district
court (Patel, J.) denied both motions, ordering certain
documents to be submitted to her for in camera review.
Following submission of the additional documents
requested by the court, the parties renewed their crossmotions for summary judgment, and in February 2012, the
district court granted each motion in part and ordered the
Government to turn over certain additional documents.1 After
the case was transferred to then-Chief Judge Ware, the
Government moved for clarification and partial
reconsideration. The district court granted the motion in part
and allowed the Government to withhold certain additional
documents.
B. MLTF Seeks Attorney Fees
In June 2012, MLTF moved for attorney fees and costs
pursuant to 5 U.S.C. § 552(a)(4)(E). MLTF argued, first, that
it had substantially prevailed in the litigation, making it
eligible for fees and costs under § 552(a)(4)(E). MLTF also
argued that it was entitled to attorney fees because the public
interest was benefitted by the disclosure of the documents,
MLTF’s interest in the documents was aligned with that
public interest, and there was no reasonable basis for the
Government’s withholding of the documents.

1

A partial impetus for the district court’s order was that certain
documents were no longer properly classified as confidential because the
U.S. government had declared an end to Operation Iraqi Freedom.

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MLTF proposed the amount of fees pursuant to the
“lodestar” method, and argued that the district court should
defer to MLTF’s attorneys’ current billing rates and their
judgment about the number of reasonable hours expended.
MLTF directed the district court to the declarations of its
attorneys describing fees awarded to them in similar
circumstances, but only requested that the district court award
them fees based on its attorneys’ current billing rates. MLTF
requested a fee award of $381,633.99.
The Government opposed the motion, arguing that
although MLTF was eligible for fees, it was not entitled to
them because the Government had articulated a reasonable
basis for withholding the documents and because MLTF had
submitted an unreasonably high fee request.
The
Government further argued that, even if MLTF was entitled
to fees, its award should be substantially lower than
requested. The Government argued that the hours billed
should be reduced because of MLTF’s limited success on
some issues and because the hours billed represented
duplicative work. Finally, the Government contended that
MLTF’s attorneys were not entitled to their current billing
rate, and that MLTF had failed to submit evidence of the
reasonableness of their fees. The Government suggested a
rate of $200 an hour instead.
C. The District Court Grants MLTF a Portion of the
Requested Fees
On August 21, 2012, Judge Ware granted MLTF’s motion
in part, awarding $180,520 in fees and $1,059.99 in costs. He
held that MLTF was both eligible for, and entitled to, fees
and costs, but rejected MLTF’s request for fees based on
current billing rates. He observed that “the bulk of the

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litigation in this case took place between 2006 and 2008,” and
thus, he “[did] not look to the attorneys’ current rates, but
instead look[ed] to prevailing market rates between 2006 and
2008.” Hiken v. Dep’t of Def., No. C 06-02812 JW, 2012 WL
3686747, at *5 (N.D. Cal. Aug. 21, 2012). He noted that
“Plaintiffs fail[ed] to provide evidence of prevailing market
rates in this forum during the time period at issue.” Id. He
then cited two cases from the Northern District of California,
Blackwell v. Foley, 724 F. Supp. 2d 1068 (N.D. Cal. 2010),
and Pande v. ChevronTexaco Corp., No. C 04-05107 JCS,
2008 WL 906507 (N.D. Cal. Apr. 1, 2008), and determined
that, consistent with those decisions, a reasonable rate for all
of MLTF’s attorneys was $200 an hour. Judge Ware
declined, however, to reduce the number of billable hours,
and granted a fee award of $180,520.
D. MLTF Moves to Amend the Judgment
In September 2012, MLTF moved pursuant to Rule 59(e)
to amend the judgment on the ground that the district court
had improperly calculated the fee award. MLTF argued that,
contrary to the district court’s opinion, it had submitted
evidence of the prevailing market rates from 2006 and 2008,
and that the court’s calculation had resulted in an
unreasonably low award. The Government argued that the
district court had properly considered historical rates in
arriving at the hourly rate, and that the total award was more
than reasonable because MLTF had been compensated for all
of its billed hours, despite being only partially successful in
the litigation.
The motion was referred to a magistrate judge
(Westmore, J.), who recommended that MLTF’s motion be
granted because MLTF had, in fact, submitted declarations

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showing the prevailing market rates during the applicable
period, and thus the district court’s finding to the contrary
was clear error. Finding that MLTF had submitted adequate
evidence, Judge Westmore undertook her own examination
of the prevailing rates and determined that an appropriate fee
award would be $257,776.50.
She supported her
recommendation by creating a chart showing the appropriate
billing rate for each attorney during the relevant periods.
The Government moved for the district court to consider
MLTF’s motion de novo. Judge Rogers, newly assigned to
the case, largely rejected the Magistrate’s recommendation
and held that Judge Ware had properly assigned a rate of
$200 an hour. Without passing on the sufficiency of MLTF’s
evidence, Judge Rogers noted that although MLTF had
submitted declarations attesting to the historical billing rates,
it “did not actually argue in the Fee Motion for any rates other
than their current billing rates, nor did [it] provide any
analysis on what reasonable historical rates would have been
for each of the attorneys during the time worked.” Hiken v.
Dep’t of Def., No. 06-cv-02812-YGR, 2013 WL 4496336, at
*4 (N.D. Cal. Aug. 19, 2013). She went on to hold that Judge
Ware had not committed plain error in finding that “Plaintiffs
fail[ed] to provide evidence of the prevailing market rates,”
because such a statement “does not compel the conclusion
that he did not consider the scant evidence now highlighted
by Plaintiffs, especially in light of the parties’ arguments in
the Fee Motion briefing.” Id. at *6. Judge Rogers concluded
that Judge Ware’s fee award was not the result of manifest
injustice or clear error, and consequently denied MLTF’s
motion to amend the judgment.
MLTF filed this appeal, purporting to appeal:

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Order Granting Defendants; Motion for De
Novo Determination of Dispositive Matter
Referred to Magistrate Judge; Adopting in
Part Report and Recommendations That
Plaintiffs; Motion to Alter or Amend the
Judgment be Granted; and Denying Plaintiffs’
Motion to Alter or Amend Judgment Per. Fed.
Rule of Civ. Pro. 59(e), Dkt. No. 145, entered
in this action on August 19, 2013.

ER 94. The Notice of Appeal did not mention the underlying
fee award.
STANDARD OF REVIEW
A district court’s award of attorney fees under FOIA is
reviewed for abuse of discretion, with de novo review being
afforded to questions of law. Or. Nat. Desert Ass’n v. Locke,
572 F.3d 610, 613–14 (9th Cir. 2009). A district court’s
denial of a Rule 59(e) motion to amend judgment is similarly
reviewed for abuse of discretion. Int’l Rehab. Scis. Inc. v.
Sebelius, 688 F.3d 994, 1000 (9th Cir. 2012).
DISCUSSION
I. Review of the Underlying Fee Award
Before engaging the merits of this appeal, we must first
determine the precise issue which is being appealed. MLTF
has only noticed for appeal Judge Rogers’s denial of its
motion to amend judgment. This sets a high bar for MLTF.
A motion to amend judgment may only be granted where:
“1) the motion is ‘necessary to correct manifest errors of law
or fact upon which the judgment is based;’ 2) the moving

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party presents ‘newly discovered or previously unavailable
evidence,’ 3) the motion is necessary to ‘prevent manifest
injustice,’ or 4) there is an ‘intervening change in controlling
law.’” Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d
1058, 1063 (9th Cir. 2003) (quoting McDowell v. Calderon,
197 F.3d 1253, 1254 n.1 (9th Cir. 1999)). By contrast, we
may reverse a district court’s underlying fee award upon a
finding that the court abused its discretion by committing an
error of law, whether manifest or not.
The import of MLTF’s deficient notice of appeal is
apparent to the parties. The Government points out that
MLTF failed to notice the underlying fee award, and argues
that there is no basis to review that earlier order. MLTF,
perhaps realizing its error only after it was pointed out by the
Government, argues in its reply brief that this Court has
discretion to review the underlying award, notwithstanding
MLTF’s procedural error.
MLTF’s notice of appeal is plainly deficient. But MLTF
is correct that our review is nonetheless properly directed at
Judge Ware’s underlying fee award, and not at the subsequent
order denying MLTF’s motion to amend judgment. We allow
a party to argue the merits of an order not appearing on the
face of an appeal after considering: “(1) whether the ‘intent
to appeal a specific judgment can be fairly inferred’ and
(2) whether ‘the appellee [was] prejudiced by the mistake.’”
Lolli v. County of Orange, 351 F.3d 410, 414 (9th Cir. 2003)
(alteration in original) (quoting Montes v. United States,
37 F.3d 1347, 1351 (9th Cir. 1994)). Intent to appeal the
underlying order may be inferred where only the denial of a
motion for reconsideration appears on the face of the appeal.
Id. (citing United States v. Belgarde, 300 F.3d 1177, 1180

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(9th Cir. 2002); McCarthy v. Mayo, 827 F.2d 1310, 1313–14
(9th Cir. 1987)).
In Lolli, the notice of appeal only mentioned the denial of
the motion for reconsideration of an adverse summary
judgment order, and did not specify an intention to appeal the
summary judgment order itself. 351 F.3d at 414. We
nonetheless reviewed the summary judgment order directly
because the appellant’s “intent to appeal the summary
judgment order can be inferred, as we frequently have done
when a party appeals after its motion for reconsideration was
denied.” Id. We went on to hold there was no prejudice to
the defendants where the appellant had provided a “full
discussion” of the summary judgment order in its opening
brief, and the defendants had provided a “detailed response”
in their answering brief. Id. at 414–15.
This case fits comfortably within those principles.
Notwithstanding MLTF’s failure to designate for appeal
Judge Ware’s underlying fee order, MLTF’s intent to appeal
the underlying fee award is apparent from both the factual
circumstances and MLTF’s extensive briefing on the issue.
The Government also cannot demonstrate prejudice. It had,
and took advantage of, an opportunity to argue the merits of
the underlying award in its opposition brief. Although the
dissent is “not persuaded that the ‘fair inference’ of an intent
to appeal should be so facilely bestowed upon Appellants
who have failed to comply with the rules of appellate
procedure,” Dissenting Op. at 21, it does not contest that
MLTF meets both elements of the test we articulated in Lolli.
Accordingly, we choose to exercise our discretion and

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consider in this appeal the merits of Judge Ware’s underlying
fee award.2
II. The Underlying Fee Award
A. Applicable Law
A party seeking attorney fees in a FOIA action must show
that it is both eligible for, and entitled to, such fees. Church
of Scientology v. U.S. Postal Servs., 700 F.2d 486, 489 (9th
Cir. 1983). A party is eligible for attorney fees if it
“substantially prevailed” in the litigation. Id. (quoting
5 U.S.C. § 552(a)(4)(E)). If a party is eligible for attorney
fees, the determination of entitlement is within the sound
discretion of the trial court. Id. at 492. In exercising such
discretion, the district court must consider: “(1) the public
benefit from disclosure, (2) any commercial benefit to the
plaintiff resulting from disclosure, (3) the nature of the
plaintiff’s interest in the disclosed records, and (4) whether
the government’s withholding of the records had a reasonable
basis in law.” Long v. IRS, 932 F.2d 1309, 1313 (9th Cir.
1991).
The “customary method” for awarding fees is the lodestar
method, which is performed by multiplying the number of
hours reasonably expended by the prevailing party in the
litigation by a “reasonable hourly rate.” Morales v. City of
San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). There is a
“strong presumption” that the lodestar figure represents a

2

MLTF’s appeal remains timely. While MLTF would ordinarily have
thirty days from entry of the fee award to appeal, if a motion to amend
judgment is filed, the thirty days does not begin to run until the motion is
decided. Fed. R. App. P. 4(a)(4).

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reasonable award, and the figure should only be departed
from “if certain factors relating to the nature and difficulty of
the case overcome this strong presumption and indicate that
such an adjustment is necessary.” Long, 932 F.2d at 1314
(internal quotation marks omitted).
The district court must “provide a . . . detailed account of
how it arrives at appropriate figures for ‘the number of hours
reasonably expended’ and ‘a reasonable hourly rate.’” Hall
v. Bolger, 768 F.2d 1148, 1151 (9th Cir. 1985) (quoting Blum
v. Stenson, 465 U.S. 888 (1984)). Though the district court
generally possesses a “superior understanding of the
litigation,” “[i]t remains important . . . for the district court to
provide a concise but clear explanation of its reasons for the
fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).
To determine a “reasonable hourly rate,” the district court
should consider: “experience, reputation, and ability of the
attorney; the outcome of the results of the proceedings; the
customary fees; and the novelty or the difficulty of the
question presented.” Chalmers v. City of Los Angeles,
796 F.2d 1205, 1211 (9th Cir. 1986) (citing Kerr v. Screen
Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)). The
reasonable rate should generally be guided by “the rate
prevailing in the community for similar work performed by
attorneys of comparable skill, experience, and reputation.”
Id. at 1210–11 (citing Blum, 465 U.S. at 895 n.11 (1984)).
The burden is on the fee applicant to produce evidence
“that the requested rates are in line with those prevailing in
the community.” Camacho v. Bridgeport Fin., Inc., 523 F.3d
973, 980 (9th Cir. 2008) (internal quotation marks omitted)
(quoting Blum, 465 U.S. at 895 n.11). In general,
“[a]ffidavits of the plaintiffs’ attorney and other attorneys
regarding prevailing fees in the community, and rate

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determinations in other cases, particularly those setting a rate
for the plaintiffs’ attorney, are satisfactory evidence of the
prevailing market rate.” United Steelworkers of Am. v.
Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).
The resulting lodestar figure is “presumed to be [a]
reasonable fee.” Blum, 465 U.S. at 897. The district court
may nonetheless consider other factors in determining
whether to adjust the fee award upward or downward.
Chalmers, 796 F.2d at 1212. However, the district court
should explain why the adjustment was appropriate. Hall,
768 F.2d at 1151.
B. Calculation of the Reasonable Rate
Consistent with its burden, MLTF provided substantial
evidence of the prevailing market rate for the applicable
periods. In addition to affidavits from each of the attorneys
attesting to the reasonableness of their rates, MLTF also
supported its application by reference to comparable fee
awards, including:
•

A 2009 fee award for $350 an hour to Colleen Flynn;

•

A 2011 fee award for $500 an hour to a 2001 law
graduate;

•

A 2008 fee award for $695 an hour to a 1978 law
graduate;

•

A 2010 fee award for $675 an hour to a 1995 law
graduate;

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•

A 2010 fee award for $440 an hour to a 2008 law
graduate.

Despite the evidence provided by MLTF, the court below
chose instead to rely on two district court opinions, Blackwell
v. Foley, 724 F. Supp. 2d 1068 (N.D. Cal. 2010), and Pande
v. ChevronTexaco Corp., No. C 04-05107 JCS, 2008 WL
906507 (N.D. Cal. Apr. 1, 2008), in determining the
prevailing market rate. This authority was not apposite. In
Blackwell, the court was considering the prevailing market
rate for a 2002 graduate performing legal work in 2007 and
2008. 724 F. Supp. 2d at 1082. And in Pande, the court was
considering the prevailing market rate for a 2004 graduate
performing legal work in 2007. 2008 WL 906507, at *5.3
In justification of the rates that it found reasonable, the
court below said that “Plaintiffs fail to provide evidence of
prevailing market rates in this forum during the time period
at issue.” Hiken, 2012 WL 3686747, at *5. In view of the
evidence in the record discussed above regarding MLTF’s
rates, we cannot agree with this conclusion. As our case law
makes clear, it is incumbent upon the district court to provide
a “concise but clear explanation of its reasons for the fee
award.” Hensley, 461 U.S. at 437.
The Government argued below that the court had, in fact,
reviewed and considered the evidence of prevailing historical
rates in the community, but “simply concluded that [those]

3
Here, MLTF sought fees for attorneys graduating in 2002, 2004, 2005,
and 2006. The dissent faults our reasoning because “[n]ot one of the
referenced cases arose under the Freedom of Information Act, as does this
case.” Dissenting Op. at 23. The same is true, however, of each of the
cases relied upon by the district court.

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declarations did not provide sufficient evidence of the
prevailing rates.” Defendants’ Motion for De Novo
Determination of Dispositive Matter Referred to Magistrate
Judge at 6, Hiken, 2013 WL 4496336 (No. 06-cv-02812YGR), ECF No. 140. The Government, however, appears to
have shifted its approach on appeal, arguing instead, as the
district court held, that MLTF forfeited its opportunity to
argue for historical rates by only advocating in its brief for
current rates. We cannot accept this argument.
We have articulated the burden for each side in a fee
application: “[T]he burden is on the fee applicant to produce
satisfactory evidence . . . that the requested rates are in line
with those prevailing in the community.” Camacho, 523 F.3d
at 980. Conversely, “[t]he party opposing the fee application
has a burden of rebuttal that requires submission of evidence
to the district court challenging the accuracy and
reasonableness of the hours charged or the facts asserted by
the prevailing party in its submitted affidavits.” Gates v.
Deukmejian, 987 F.2d 1392, 1397–98 (9th Cir. 1992). The
Government asks us to impose an additional limitation on fee
applicants: namely, that they are foreclosed from pointing out
a misapplication of a historical rate calculation if they only
requested current rates in an initial application. We do not
believe that such an additional burden would be warranted.
From time to time, fee applicants request awards higher than
that which the evidence may, upon close review by a neutral
judge, fairly permit. But a fee applicant’s decision to request
a higher rate does not permit a court to disregard different
rates if the evidence in the record supports them.
The cases cited by the Government only stand for the
obvious proposition that a court is not required to
“manufacture arguments” on behalf of litigants. See Indep.

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Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir.
2003); Wilson v. Gray, 345 F.2d 282, 290 (9th Cir. 1965); see
also United States v. Anekwu, 695 F.3d 967, 985 (9th Cir.
2012). Contrary to the dissent’s insistence, none of these
cases suggests that a district court reviewing a fee application
is relieved of its obligation to calculate a reasonable rate
based on record evidence of prevailing historical rates merely
because the applicant has argued for a current rate higher than
the district court chooses to allow.
To be sure, MLTF might have been more careful to alert
the district court of the substantial evidence of prevailing
historical rates in the declarations, but there is no question
here that the evidence was properly submitted to the district
court. Furthermore, the fact that MLTF cited to the relevant
declarations in its moving papers is not consistent with the
Government’s position that the pertinent evidence was buried
in an impenetrable record. Accordingly, we vacate the
district court’s fee award and remand for a recalculation of
the appropriate rate.4
Because we vacate and remand the district court’s initial
award of fees, MLTF’s appeal from the district court’s denial
of its motion to amend the judgment is now moot. See
Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir.
2001).

4

We note that the Magistrate’s fee calculation, while not controlling on
remand, may serve as an appropriate roadmap for the district court. The
resulting fee award, upon full briefing by both parties, may be greater or
less than the recommended award from the Magistrate.

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HIKEN V. DEP’T OF DEFENSE
III.

19

Fees for Services Rendered on Appeal

MLTF requests that we award it costs and attorney fees
expended in making this appeal. As a general rule, a party
entitled to attorney fees as a matter of statute is similarly
entitled to fees accumulated in “establishing and negotiating
his rightful claim to the fee.” Se. Legal Def. Grp. v. Adams,
657 F.2d 1118, 1126 (9th Cir. 1981) (internal quotation marks
omitted) (quoting Lund v. Affleck, 587 F.2d 75, 77 (1st Cir.
1978)).
The Government argues that any request for fees related
to this appeal is premature because even if we vacate and
remand, the district court may still, after review of the
evidence and exercise of its discretion, award the same sum.
We disagree. In United Steelworkers, we vacated and
remanded a fee award, instructing the district court to
recalculate the appropriate fee. 896 F.2d at 407–08. In doing
so, we noted that plaintiffs were nonetheless entitled to fees
for the time spent on the appeal. Id. at 408. The Government
has not challenged, on this appeal, MLTF’s eligibility for and
entitlement to attorney fees. Thus, there is no question that
MLTF falls within the class of litigants entitled to attorney
fees on appeal, and MLTF may request attorney fees on
appeal in accordance with Ninth Circuit Rule 39-1.6.5

5

MLTF has also requested fees related to its motion to amend judgment
below. We leave the award and calculation of those fees to the sound
discretion of the district court.

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HIKEN V. DEP’T OF DEFENSE
CONCLUSION

The fee award of the district court is VACATED, and the
matter is REMANDED for recalculation of attorney fees in
a manner consistent with this opinion.

RAWLINSON, Circuit Judge, dissenting:
I respectfully dissent for two reasons: 1) Military Law
Task Force (Task Force) failed to appeal the district court’s
fee award; and 2) the district court acted within its discretion
in calculating the fee award.
1. Task Force failed to appeal the district court’s fee
award.
As the majority candidly acknowledges, the “notice of
appeal is plainly deficient.” Majority Opinion, p. 11.
Specifically, Task Force’s notice of appeal contained
absolutely no mention of the underlying fee award. Rather,
it referenced only the district court’s denial of the motion for
reconsideration.
The majority relies upon the case of Lolli v. County of
Orange, 351 F.3d 410 (9th Cir. 2003) and the cases cited in
Lolli. See Majority Opinion, p. 11–12. However, a closer
reading of the cases cited in Lolli reveals the existence of
factual circumstances that are not present in this case.
In United States v. Belgarde, 300 F.3d 1177, 1180 (9th
Cir. 2002), we expressed our belief that “all parties
understood that the government was appealing the dismissal

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21

of the Indictment following denial of a motion to reconsider.”
No such understanding existed in this case.
In McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir.
1987), we observed that “[i]n denying [the] post-judgment
motion, the district court incorporated the prior order . . .” No
similar incorporation of the prior order accompanied the
district court’s denial of Task Force’s motion for
reconsideration.
I am not persuaded that the “fair inference” of an intent to
appeal should be so facilely bestowed upon Appellants who
have failed to comply with the rules of appellate procedure.
I would hold that Task Force failed to appeal the underlying
fee award.
As the majority acknowledges, Task Force argued only
for fees based on the current billing rates for its attorneys.
Task Force made absolutely no argument for fees predicated
upon prevailing historic market rates for the pertinent
geographical area and time period. See Majority Opinion, p.
4. Yet, the majority essentially holds that it was incumbent
upon the district court judge to award fees based upon an
argument that was never made by Task Force. See id. at
17–18.
Until today, we had not required a district court to rule on
an argument that was never presented. Indeed, our precedent
is to the contrary. We have consistently ruled that a party
forfeits any argument not made to the district court. See
United States v. Anekwu, 695 F.3d 967, 985 (9th Cir. 2012)
(“[A]n appellant waives arguments by failing to raise them in

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HIKEN V. DEP’T OF DEFENSE

the district court . . .”) (citation omitted); see also Li v. Kerry,
710 F.3d 995, 1000 n.4 (9th Cir. 2013).1
2. The district court acted within its discretion in
calculating the fee award.
Our review of the reasonableness of an attorney fee award
is for an abuse of discretion. See United States v. $28,000.00
in U.S. Currency, 802 F.3d 1100, 1104 (9th Cir. 2015).
The majority points to the inclusion of a declaration of
Carol Sobel setting forth fee awards in various court cases in
the Los Angeles area. See Majority Opinion, p. 16–17.
However, the majority’s reliance on these fee awards is
problematic for two reasons: 1) the data provided was
proffered for the purpose of supporting Task Force’s request
for an award of its current billing rates, and 2) the district
court was not required to accept the proffered rates as
controlling.
Notably, Task Force never argued that the rates set forth
in the Sobel declaration established prevailing market rates
for 2006 to 2008. Rather, Task Force relied on the rates in
the declaration as support for an award of its current rates,
particularly since the rates in the declaration encompassed
2008–2011, as opposed to the pertinent years of 2006–2008.
More importantly, the district court was not required to
accept these rates as prevailing market rates for 2006–2008,
not only because the rates were for different years, but also

1

The majority opinion completely ignores the holding of these cases and
permits Task Force to appeal on a basis that was never presented to the
district court.

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23

for different types of cases. Not one of the referenced cases
arose under the Freedom of Information Act, as does this
case.2 Rather, the rates cited were awarded in “a recent large
class-action First Amendment case,” “a consumer class
action,” and civil rights litigation. Absent a showing that the
fees were earned in cases that were analogous to litigation
under the Freedom of Information Act, the district court was
not obligated to accept these rates as historical market rates.
See Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 946
(9th Cir. 2007) (“[B]illing rates should be established by
reference to the fees that private attorneys of an ability and
reputation comparable to that of prevailing counsel charge
their paying clients for legal work of similar complexity.”)
(citations omitted).
In summary, because Task Force did not appeal the
underlying fee award, and because the district court acted
within its discretion in determining the appropriate fee award,
I would affirm.

2
The majority seeks to minimize this discrepancy by pointing to the
cases relied on by the district court. See Majority Opinion, p. 16 n.3.
However, if non-Freedom of Information Act cases do not support the
district court’s decision, they do not become magically more persuasive
because they are cited by the majority.