Marguerite Hiken v. Department of Defense

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARGUERITE HIKEN; THE No. 13-17073

MILITARY LAW TASK FORCE,

Plaintiffs-Appellants, D.C. No. 4:06-cv-02812-YGR v.

DEPARTMENT OF DEFENSE; OPINION

UNITED STATES CENTRAL

COMMAND,

Defendants-Appellees.

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. 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…

Dissent by Judge RAWLINSON

OPINION

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…

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. 1043. 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 eases cited in Lolli. See Majority Opinion, p. 1043. 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 of the Indictment following denial of a motion to reconsider.” No such understanding existed in this case.

In McCarthy v. Mayo, 827 F.2d…