Gilman v. Fisher, et al

Filing 556

ORDER signed by Judge Lawrence K. Karlton on 7/25/2014 GRANTING IN PART the 542 Motion for Attorney Fees; ORDERING the defendants to pay the plaintiffs' counsel such fees in the total amount of $34,201.56; DENYING the defendants' Request for Stay of Payment without prejudice to its renewal under F.R.Cv.P. Rule 61(d), or pursuant to a motion otherwise explaining their entitlement to a stay. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD M. GILMAN, et al.,

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No.

CIV. S-05-830 LKK/CKD

Plaintiffs,
v.

ORDER

EDMUND G. BROWN, JR., et al.,

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Defendants.

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Plaintiffs move for attorneys’ fees in the amount of

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$58,471.

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granted, but in the amount of $34,201.56.

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For the reasons set forth below, the motion will be

I.

ATTORNEYS’ FEES

Plaintiffs are generally entitled to attorneys’ fees where,

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as here, they are the prevailing parties in a civil rights action

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brought pursuant to 42 U.S.C. § 1983.

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(“the court, in its discretion, may allow the prevailing party …

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a reasonable attorney's fee as part of the costs”); Bauer v.

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Sampson, 261 F.3d 775, 785 (9th Cir. 2001) (“Plaintiffs in § 1983

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actions ‘should ordinarily recover an attorney's fee unless

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special circumstances could render such an award unjust’”)
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See 42 U.S.C. § 1988(b)

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(quoting Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402

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(1968)).

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entitlement to an award and documenting the appropriate hours

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expended and hourly rates.”

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437 (1983).

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Plaintiffs bear the initial burden “of establishing

Hensley v. Eckerhart, 461 U.S. 424,

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 = $846.00.1
Law students: 234.46 hours @ $211.50 per hour = $49,588.29.2
Case expenses: $0.00.3
Defendants do not challenge plaintiffs’ entitlement to fees.

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They do however, argue that the amount plaintiffs seek should be

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reduced.

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A.

Billing Rate.

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Plaintiffs are incarcerated prisoners, and therefore the

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fees they may seek for this litigation are limited by the Prison

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Litigation Reform Act (“PLRA”), 42 U.S.C. § 1997e.

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Hadix, 527 U.S. 343, 350 (1999) (the PLRA “places a cap on the

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size of attorney's fees that may be awarded in prison litigation

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suits”).

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Martin v.

That statute provides:

This is for work on plaintiffs’ reply memorandum on this
attorneys’ fees motion.
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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.

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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.

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2

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(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] …

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(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 courtappointed counsel.

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42 U.S.C. § 1997e(d).

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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.”
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U.S.C.
§ 1997e(d)(3).

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Perez v. Cate, 632 F.3d 553, 554 (9th Cir. 2011).
In turn, 18 U.S.C. § 3006A provides that the hourly rate

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shall be determined by the Judicial Conference of the United

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States in conformity with a formula set forth in the statute.

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U.S.C. § 3006A(d)(1); Perez, 632 F.3d at 555.

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Conference, in its turn, has established the following maximum

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rates in these cases:

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The Judicial

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If services were performed
between...
03/01/2014 to present
09/01/2013 through 02/28/2014
01/01/2010 through 08/31/2013
03/11/2009 through 12/31/2009
01/01/2008 through 03/10/2009

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7 Guide to Judiciary Policy § 230.16.4

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4

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The maximum hourly
rate is...
$126
$110
$125
$110
$100
Thus, the baseline rate –

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).
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the rate before the multiplier (no more than 150%) is applied –

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depends on the year the services were performed, and ranges from

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$100 to $126.

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defendants) that the proper “baseline” rate for fees under the

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CJA is the one set by the Judicial Conference.

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Motion for Attorney’s Fees (“Motion”) (ECF No. 542) at 6.

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Indeed, plaintiffs correctly argue (as do

See Plaintiffs’

However, plaintiffs do not request the fees established by

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the Judicial Conference.

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to the published, publicly available, maximum baseline rates

Indeed, they do not even make reference

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established by the Judicial Conference, the agency charged by law

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with making that determination.

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baseline rate of $141.

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Instead, plaintiffs seek a

Motion at 6.

Plaintiffs request this baseline rate based upon an e-mail

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they say they received from an “Attorney Advisor” of the Defender

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Services Office of the Administrative Office of the U.S. Courts,

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to a person apparently associated in some way with Prisoners

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Legal Services of Boston, MA.

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authorized CJA hourly non-capital rate for fiscal years 2011,

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2012 and 2013 was $139,” but was increased in January 2014 “from

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$139 to $141”).5

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that “[t]here is no public document that lists these authorized

ECF No. 542-1 at 9 (“the

The Attorney Adviser states, in the e-mail,

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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. (3-28-2014)”) (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”).

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rates,” indicating that discovering the baseline rate is a

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secret, mysterious process available only through private

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correspondence with the Defender’s Office.

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at 9.

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document that is available from the Judicial Conference on its

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public website, and which expressly sets forth the baseline

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rates.

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See ECF No. 542-1

However, the e-mail makes no reference to the public

Moreover, plaintiffs offer no evidence that the Attorney
Adviser speaks for the Judicial Conference, the Administrative

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Office of the U.S. Courts, or even the Defenders Services Office.

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Nor do they offer any evidence or legal citation indicating that

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the Attorney Adviser can overrule the official, publicly

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available Judicial Conference determination on this matter which,

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to repeat, can be found at (Vol.) 7 Guide to Judiciary Policy

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§ 230.16, and is available on the public Judicial Conference

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website, cited above.

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give no weight whatever to the e-mail cited by plaintiffs, as the

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sole initial support of their assertion that the baseline rate is

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$141.6

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For these reasons alone, the court will

In their Opposition, defendants correctly pointed out that

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the rate authorized by the Judicial Conference is set forth at

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7 Guide to Judiciary Policy § 230.16.

Defendants’ Opposition to

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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.

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Plaintiffs’ Motion for Attorney’s Fees (“Opposition”) (ECF

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No. 546) at 3-4 & 3 n.3.

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however, defendants did not use the rates published by the

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Judicial Conference.

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March 20, 2013 Congressional testimony of Hon. Julia Gibbons,

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which she gave in her role as the Chair of the Committee on the

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Budget of the Judicial Conference of the United States.

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at 3 n.3.

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2014, in any event), that the Judicial Council authorized, namely

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For reasons they do not explain

Rather, they use rates referred to in the

Id.,

However, that is the same baseline rate (for some of

$126 per hour.

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1.

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Judge Gibbons.

In their Reply, plaintiffs turn to the March 18, 2010

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Congressional testimony of Judge Gibbons.

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& 2 n.2.7

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rate because “[i]n March 2010, the Judicial Conference requested

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that Congress increase the non-capital CJA rate to ‘the

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statutorily authorized rate of $141 per hour, effective January

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1, 2011.’”

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See Reply at 2

Plaintiffs argue that the baseline rate is the $141

Reply at 2 (quoting the testimony of Judge Gibbons).

In other words, after initially asserting that the baseline

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rate was determined through private correspondence with the

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Defender’s Office, they now assert that the rate is determined by

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poring through Congressional testimony.

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not explain how Congressional testimony, even from Judge Gibbons,

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could override the official, published determination of the

However, plaintiffs do

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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).

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Judicial Conference itself.

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testimony is the proper way to determine the baseline rate,

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plaintiffs do not explain why we should not use Judge Gibbons’s

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more recent testimony:

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Panel attorney rates as of March 1, 2014, are
$126 per hour for non-capital work and $180
per hour for capital work.

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March 26, 2014 Congressional Testimony of Hon. Julia Gibbons.8

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Even if poring through this

Moreover, even assuming that $141 is the “statutorily
authorized rate,” plaintiffs’ argument is predicated upon a false

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choice.

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by the rate Congress appropriates funds for, but rather by the

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amount authorized by statute.

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are correct on one level, they omit the critical second step

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here, which is that the amount “authorized by statute” is left to

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the Judicial Conference to determine.

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(“the Judicial Conference is authorized to raise the maximum

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hourly rates specified in this paragraph”).

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authorized by statute, for purposes of determining the baseline

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amount, is the amount actually determined by the Judicial

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Conference, not the theoretical amount the Judicial Conference

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could raise it to,9 or the amount that the Judicial Conference

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According to plaintiffs, the baseline is not determined

Reply at 4.

Although plaintiffs

See 18 U.S.C. § 3006A(d)

Thus, the amount

Available at
http://news.uscourts.gov/sites/default/files/Judge-Gibbons_2015Budget.pdf (last visited by the court on July 25, 2014).

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Judge Gibbons also testified:

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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
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asked the Congress to fund.10

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that is determined by reference to official, public documents

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that are easily accessible by the parties and this court, not by

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going through secret channels, by means of private e-mail

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communications, by interpreting random pieces of paper (see

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below), and by poring over Congressional testimony.11

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2.

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Equally important, it is a rate

2014 Budget Justification.

Plaintiffs next turn to two pieces of paper which they
assert is “an excerpt from the Fiscal Year 2014 Judiciary

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been provided to panel attorneys on a
recurring, annual basis since 1986, the
authorized noncapital hourly rate for fiscal
year 2011 would be $141.

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Gibbons Testimony (3-18-2010) at 14 (emphasis added).

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Judge Gibbons further testified:
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.

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March 18, 2014 Testimony of Judge Gibbons at 13 (emphasis added).
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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).

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Congressional Budget Justification.”

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36-37) of the April 28, 2014 Declaration of Ernest Galvan

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(“Galvan Decl. (4-28-2014)”) (ECF No. 550-1) ¶ 6.

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information plaintiffs offer about these pages is that they were

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received “by email from the Defenders Service.”

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28-2014) ¶ 6.

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pages is, whether the pages are authentic, whether they are part

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of a draft or final version of something, whether they were ever

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submitted to Congress or anyone else, whether the language was

Exhibit 3 (ECF No. 550-1 at

The only

Gavan Decl. (4-

The court is not informed who the author of the

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approved by the Judicial Conference or possibly the

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Administrative Office, where the full document can be found, or

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anything else about these pages.

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paper are simply not anything that this court can use in making a

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judicial determination.

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properly interpreted these pages to mean that the maximum

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baseline rate is $141 (and this is not at all clear), they have

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provided no basis for this court to find that these pages

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override the official, published determination of the Judicial

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Conference, that the maximum baseline rate for 2014 is $110 or

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$126, depending upon when the work was performed.

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3.

These two random pieces of

Moreover, even if plaintiffs have

Webb v. Ada County.

Plaintiffs argue that “what matters is not the amount that

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Congress approves, but the amount that the statute actually

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authorizes” (Reply at 4), citing Webb v. Ada County, 285 F.3d 289

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(9th Cir.), cert. denied, 537 U.S. 948 (2002).

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no issue with this.

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plaintiffs’ $141 figure.

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Defendants take

However, it does not in any way support

The amount the statute “actually authorizes” is the amount
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determined by the Judicial Conference:

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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.

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18 U.S.C. § 3006A(d) (emphases added).

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indicates that the amount authorized is the amount of funding the

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Judicial Conference requests, nor the amount that the Judicial

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Conference would like to pay attorneys if it had sufficient

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funding.

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actually determines, using its guidelines.

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establish rates of $100 to $126 from 2008 to 2014.

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Judiciary Policy § 230.16.

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Nothing in the statute

Rather, it is the amount the Judicial Conference
Those guidelines
7 Guide to

Plaintiffs seem to interpret Webb to say that the rate level

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the Judicial Conference could have sought over the years in its

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budget testimony before Congress is the rate that governs here.

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Reply at 2.

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case holds that the rate the Judicial Conference determines is

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what governs, even if funds are not available to actually pay

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that amount:

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But that is not what Webb teaches.

Rather, that

The PLRA expressly provides for payment at
the rate “established” under 18 U.S.C.
§ 3006A.
42 U.S.C. § 1997e(d)(3).
The
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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.

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Webb, 285 at 839 (emphasis added).

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B.

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Although plaintiffs are plainly entitled to attorneys’ fees

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Entitlement to Fees.

– a proposition not disputed by defendants – they have utterly

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failed to establish at what rate they should be paid.

Not only

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do they make no reference to the rates established by the

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Judicial Conference, they actually direct the court’s attention

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away from that determination in favor of an e-mail from the

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Defenders Office, Congressional testimony, and seemingly random

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pieces of paper sent to them by e-mail from an unknown person at

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the “Defender Services.”

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justified in denying fees entirely based upon plaintiffs’ motion.

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However, since defendants do not dispute that plaintiffs are

Accordingly, the court would be

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entitled to fees, the court will award fees in accordance with

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the calculations offered by defendants, which at least have a

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demonstrable relationship to the applicable law.12

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request that the clinic law students be paid at the baseline rate

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for each year, and that Carter White be paid at 150% of the

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Defendants

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.

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baseline.

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See 7 Guide to Judiciary Policy § 230.16 (establishing the

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maximum baseline rates); 42 U.S.C. § 1997e(d)(e) (establishing

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that the maximum fees are 150% of the baseline rates).

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figures are as follows:

Both requests are supported by the applicable law.

These

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Carter White

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2008:
2009:
2010:
2013:
2014:

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$169.50
$177.00
$213.00
$189.00
$189.00

Clinic Law Students
(150%
(150%
(150%
(150%
(150%

of
of
of
of
of

$113)
$118)
$142)
$126)
$126)

$113
$118
$142
$126
$126

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Based on these rates, and the hours documented by plaintiffs,

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defendants’ counsel represents that total fees to plaintiffs are

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$34,201.56.

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representation, which is not disputed by plaintiffs, and will

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award that amount in attorneys’ fees to plaintiffs.13

Opposition at 7.

The court accepts defendants’

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C.

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Defendants request a stay of payment of any attorneys’ fees

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Stay Pending Appeal.

until the proceedings on appeal are resolved.

Opposition at 8.

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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.

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However, defendants have not advised the court of their

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compliance with Fed. R. Civ. P. 62(d) (“appellant may obtain a

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stay [on appeal] by supersedeas bond”).

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Masto, 670 F.3d 1046, 1066 (9th Cir. 2012) (“[h]ad the State

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complied with the express requirements of Rule 62(d) by appealing

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the underlying fees order and posting a supersedeas bond with the

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district court, it would have been entitled to a stay as a matter

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of right”).

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prejudice to its renewal.

Accordingly, the request will be denied without

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II.

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See ACLU of Nevada v.

CONCLUSION

For the reasons set forth above, the court orders as
follows:

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1.

Plaintiffs’ motion for attorneys’ fees is GRANTED, and

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such fees shall be paid to plaintiffs’ counsel by defendants, in

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the total amount of $34,201.56;

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2.

Defendants’ request for a stay of payment is DENIED

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without prejudice to its renewal under Fed. R. Civ. P. 62(d), or

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(if they believe this rule is inapplicable or not mandatory),

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pursuant to a motion otherwise explaining their entitlement to a

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stay.

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IT IS SO ORDERED.

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Dated:

July 25, 2014.

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