I.

HOW IS THE ATTORNEYS FEE CALCULATED?

A.

Ordinarily The Attorneys Fee Is Calculated Using A Lodestar

Approach

1.
Initially, the amount of an awarded attorneys fee is determined by
multiplying each lawyer and legal workers reasonable hours by each persons
reasonable hourly rate. That lodestar and its components largely are a function of
deciding what would be billed and paid in the private market for comparable services by
comparable attorneys in comparable cases. Blum v. Stenson, 465 U.S. 886, 888, 895
(1984); see also City of Burlington v. Dague, 505 U.S. 557, 562 (1992); Hensley v.
Eckerhart, 461 U.S. 424, 433-34 (1983); Ketchum v. Moses, 24 Cal. 4th 1122, 1132
(2001); PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1096-97 (2000).
2.
The initial lodestar is subject to upward or downward adjustment.
Ultimately, the reasonable fee is determined by reference to twelve factors. See Kerr v.
Screen Extras Guild, Inc., 526 F.2d 67, 69-70 (9th Cir. 1975); Johnson v. Georgia
Highway Express, Inc., 488 F.2d 714, 717-719 (5th Cir. 1974). These 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. Kerr, 526 F.2d at 70. See points II F & G, infra; cf. Graham v.
DaimlerChrysler, 34 Cal. 4th 553, 579-80 (2004); Ketchum v. Moses, 24 Cal. 4th 1122,
1132 (2001) (providing non-exclusive list of four of the above factors to be considered
for adjustment of lodestar); PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1096 (2000)
(non-exclusive list of seven, plus other circumstances).
3.
The Second Circuit has recently abandoned the lodestar terminology, in
favor of a requirement that district courts take into account all of the case-specific
variables that we and other courts have identified as relevant before arriving at a
reasonable hourly rate. This rate should then be used to calculate a presumptively
reasonable fee. Throughout this process, the guiding principle for courts in the Second
Circuit must be what a reasonable, paying client would be willing to pay. Arbor Hill
Concerned Citizens Neighborhood Assn v. County of Albany, 484 F.3d 162, 163 (2d
Cir. 2007) (emphasis in original).

Reasonable Rates
In the Ninth Circuit, where there is a divergence between an attorneys actual rate
and the market rate, the market rate will be awarded. Welch v. Metropolitan Life Ins.
Co., 480 F.3d 942 (9th Cir. 2007). See also Carson v. Billings Police Dept., 470 F.3d 889
(9th Cir. 2006) (uncontroverted evidence showed market rate to be lower than attorneys
customary rate); Maldonado v. Lehman, 811 F.2d 1341, 1342 (9th Cir. 1987), cert.
denied, 484 U.S. 990 (1987) (market rate was higher than attorneys actual customary
rate); Davis v. City & County of San Francisco, 976 F.2d 1536, 1545-46, 1548 (9th Cir.
1992), amended in non-relevant part, 984 F.2d 345 (9th Cir. 1993). Courts routinely
disregard both the rate actually charged to the prevailing party by counsel, and the rate
actually paid to the timekeeper, as irrelevant to a determination of a reasonable market
rate. See, e.g., Mendenhall v. NTSB, 213 F.3d 464, 471 (9th Cir. 2000); Moysis v. DTG
Datanet, 278 F.3d 819, 828 (8th Cir. 2002); Flannery v. Prentice, 26 Cal. 4th 572, 585
(2001); Serrano v. Unruh, 32 Cal. 3d 621, 643 (1982); Shaffer v. Superior Court, 33 Cal.
App. 4th 993, 1002 (1995).
The District of Columbia Circuit often applies a rate schedule set forth in Laffey v.
Northwest Airlines Inc., 572 F. Supp. 354, 371 (D.D.C. 1983), affd in part, vacated and
remanded in part, 746 F.2d 4 (D.C. Cir. 1984). The Laffey matrix indexes the
prevailing hourly market rates for attorneys based largely on years of experience. Id.
The D.C. Circuit Court of Appeals embraced the Laffey matrix, and it is widely used in
the circuit as a basis for calculating attorneys fees. Laffey, 746 F.2d 4 (D.C. Cir. 1984),
overruled in part by Save Our Cumberland Mountains, Inc, v. Hodel, 857 F.2d 1516,
1524 (D.C. Cir. 1988); see also Covington v. District of Colombia, 57 F.3d 1101, 1115
(D.C. Cir. 1995); Save Our Cumberland Mountains, 857 F.2d at 1525.
In the Second Circuit, calculation of a presumptively reasonable fee, rather than
calculation and subsequent adjustment of a lodestar, means that any and all case-specific
factors should be considered in arriving at an estimate of the rate a reasonable client
might be able to negotiate for the effective litigation of her case. Arbor Hill Concerned
Citizens Neighborhood Assn v. County of Albany, 484 F.3d 162, 169 (2d Cir. 2007).
The opposing party must then rebut the presumption that the fee calculated using that rate
is in fact, the ultimate reasonable fee. Id. at 172.
In lodestar jurisdictions, current rather than historic rates may be awarded, or the
awarded fee may be otherwise enhanced, to make up for delay in payment. Missouri v.
Jenkins, 491 U.S. 274, 289 (1989); Welch v. Metropolitan Life Ins. Co., 480 F.3d 942
(9th Cir. 2007). See also In re Coordinated Pretrial Proceedings (Petroleum Prods.), 109
F.3d 602, 609 (9th Cir. 1997); Gates v. Deukmejian, 987 F.2d 1392, 1406-07 (9th Cir.
1993); Davis v. City & County of San Francisco, 976 F.2d 1536, 1548 (9th Cir. 1992),
amended in non-relevant part, 984 F.2d 345 (9th Cir. 1993); Bouman v. Block, 940 F.2d
1211, 1235 (9th Cir. 1991).

In New York State Association for Retarded Children v. Carey, 711 F.2d 1136,
1153 (2d Cir. 1983), the Second Circuit held current rates appropriate for cases spanning
only two to three years. However, in Saulpaugh v. Monroe Community Hospital, rather
than allow current rates outright, the court affirmed the district courts averaging the rates
for the years spanned by the litigation to avoid awarding . . . a windfall due to the
protracted nature of the litigation. 4 F.3d 134, 146 (2d Cir. 1993).
In 42 U.S.C. 1988 cases, the current market rate may be applied to all hours to
adjust for delay in the payment of fees. Barjon v. Dalton, 132 F.3d 496, 502 (9th Cir.
1997); see also Missouri v. Jenkins, 491 U.S. 274, 283-84 (1989); cf. Graham v.
DaimlerChrysler Corp., 34 Cal. 4th 553, 583-84 (2004); Ketchum v. Moses, 24 Cal. 4th
1122, 1138 (2001) (market rate compensation typically includes a premium for the risk
of nonpayment or delay in payment); City of Oakland v. Oakland Raiders, 203 Cal.
App. 3d 78, 85 (1988). A court may not apply the lower market rate in effect two years
before the work was performed. Bell v. Clackamas County, 341 F.3d 858, 869 (9th Cir.
2003).
Nonprofit counsel for plaintiffs are usually compensated at market rates. Blum v.
Stenson, 465 U.S. 886, 895 (1984); Serrano v. Unruh, 32 Cal. 3d 621, 643 (1982). This
remains generally true. However, in 1996, Congress imposed substantial restrictions on
the recovery of attorneys fees for lawyers funded under the federal legal services
program. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.
L. No. 104-134, 504(a)(13), 110 Stat. 1321-50 (prohibiting Legal Services Corporation
funds from financing any person or entity that claims (or whose employee claims), or
collects and retains, attorneys fees pursuant to any Federal or state law permitting or
requiring the awarding of such fees) (1996 spending restriction, carried forward in
successive years).
Under federal law, the relevant community for determining reasonable hourly
rates is generally the United States judicial district in which the lawsuit is prosecuted.
See Davis v. Mason County, 927 F.2d 1473, 1488 (9th Cir. 1991), cert. denied, 502 U.S.
899 (1991); Maceira v. Pagan, 698 F.2d 38 (1st Cir. 1983); Chrapliwy v. Uniroyal, Inc.,
670 F.2d 760 (7th Cir. 1982), cert. denied, 461 U.S. 956 (1983). One exception to this
rule is when local counsel with the requisite skill and expertise is unavailable in that
district. Gates v. Deukmejian, 987 F.2d 1392, 1405 (9th Cir. 1993); see Barjon v. Dalton,
132 F.3d 496, 501-502 (9th Cir. 1997) (In establishing unavailability, Gates allows
proof of either unwillingness or inability due to lack of experience, expertise, or
specialization. There is no requirement the plaintiffs prove both.); McDonald v.
Armontrout, 860 F.2d 1456 (8th Cir. 1988). The California Supreme Court has also
applied the opposite approach, affirming an award to a law firm based on prevailing rates
in the firms home (San Francisco) market, rather than the (Los Angeles) market in which
the lawsuit was prosecuted. PLCM Group, Inc. v. Drexler, 22 Cal. 4th 1084, 1096
(2000).

In the Second Circuit, availability of less-expensive local counsel provides a

strong indication that a reasonable, paying client would not be willing to pay a higher
rate for counsel from another district. Arbor Hill Concerned Citizens Neighborhood
Assn v. County of Albany, 484 F.3d 162, 171 (2d Cir. 2007).
Except in unusual circumstances, flat hourly rates rather than rates differentiated
by task tend to be awarded in most circuits. See Henry v. Webermeier, 738 F.2d 188 (7th
Cir. 1984). Different rates may be applied to non-attorney tasks performed by attorneys.
See Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989) (citing Johnson, 488 F.2d 714,
717 (5th Cir. 1974)); Davis v. City & County of San Francisco, 976 F.2d 1536, 1543 (9th
Cir. 1992), amended in non-relevant part, 984 F.2d 345 (9th Cir. 1993).
Market rates (rather than cost-based rates) are to be awarded for law clerks,
paralegals and other legal workers whose rates are not included in the attorneys rates.
Missouri v. Jenkins, 491 U.S. 274, 287 (1989). See also Shaffer v. Superior Court
(Simms), 33 Cal. App. 4th 993, 1002 (1995) (cost base for contract attorneys not relevant
in determining amount of attorneys fees).
Rates under the Equal Access to Justice Act (EAJA) are $125 per hour adjusted
in accord with the consumer price index (CPI) to account for cost of living increases.
28 U.S.C. 2412(d)(2)(A)(ii). In extraordinary circumstances, market rates can be
awarded. See Lucas v. White, 63 F. Supp. 2d 1046 (N.D. Cal. 1999). See also
Carmichael v. United States, 70 Fed. Cl. 81, 84 (Fed. Cl. 2006) (specialized skills
justifying increased rate may include an identifiable practice specialty such as patent
law, or knowledge of foreign law or language). The correct CPI to apply is the one for
the year in which the fees were earned, not the CPI current at the time of judgment.
Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 2001).
Issues Involving Compensable Time
In the Ninth Circuit, all tasks for which attorneys bill in the private market are
compensable, including travel and media time where the latter is directly and intimately
related to the successful representation of a client. Davis v. City & County of San
Francisco, 976 F.2d 1536, 1543, 1545 (9th Cir. 1992), amended in non-relevant part, 984
F.2d 345 (9th Cir. 1993); Finkelstein v. Bergna, 804 F. Supp. 1235, 1258 (N.D. Cal.
1992). Time spent on public relations and political lobbying efforts designed to
advance the clients litigation goals is compensable. Gilbrook v. City of Westminster,
177 F.3d 839, 877 (9th Cir. 1999).
A number of federal courts of appeals are reluctant to award fees for media time. The
Fourth Circuit has rejected the reasoning in Davis, stating that [t]he legitimate goals of
litigation are almost always attained in the courtroom, not the media. Rum Creek Coal
Sales v. Caperton, 31 F.3d 169, 176 (4th Cir. 1994); see also Halderman v. Pennhurst
State Sch. & Hosp., 49 F.3d 939, 941-42 (3d Cir. 1995) (proper forum for litigation is
the courtroom, not the media); American Petroleum Inst. v. EPA, 72 F.3d

907, 913 (D.C. Cir. 1996); New Mexico Citizens for Clean Air v. Espanola
Mercantile Co., Inc., 72 F.3d 830, 835 (10th Cir. 1996).
Work on collateral litigation that disposes of issues central to the main case can be
compensable. See Armstrong v. Davis, 318 F.3d 965, 971-73 (9th Cir. 2003) (class
counsel in Armstrong entitled to fees for Supreme Court work in another case that was
important to the presentation of Armstrong class rights); Gates v. Gomez, 60 F.3d 525,
535 (9th Cir. 1995) (filing amicus brief in another unsuccessful case brought by a class
member where some of the issues raised were identical to those in the class action was
compensable); Hasbrouk v. Texaco, Inc., 879 F.2d 632, 638 (9th Cir. 1989) (unsuccessful
amicus brief in support of a petition for certiorari in another case with same issues
compensable). However, fees are not available for time spent on activities that attorneys
generally do at their own expense. Gates, 60 F.3d at 535.
Appellate time is compensable. Hutto v. Finney, 437 U.S. 678, 693 (1978). It is
not necessary to prevail on all issues in the appeal to be awarded full fees in an appeal
from an attorneys fees award. See Bernandi v. Yeutter, 951 F.2d 971, 976 (9th Cir.
1991); Greater Los Angeles Council on Deafness v. Community Television of Southern
California, 813 F.2d 217 (9th Cir. 1987).
Post-judgment time spent on compliance or monitoring is compensable. Keith v.
Volpe, 833 F.2d 850 (9th Cir. 1987). Plaintiff need not demonstrate that it has
prevailed in the post judgment proceedings. See Commissioner, INS v. Jean, 496 U.S.
154, 162 (1990). Compensation is available for post-judgment proceedings [that are]
useful and of a type ordinarily necessary to secure the litigations final result. Stewart v.
Gates, 987 F.2d 1450, 1452 (9th Cir. 1993) (internal quotation marks omitted). A
quarterly payment process is preferred. Keith v. Volpe, 833 F.2d at 860 n.6.
Time spent negotiating and litigating fees claims is compensable. Commissioner,
INS v. Jean, 496 U.S. 154 (1990) (under the EAJA, a second showing of substantial
justification is unnecessary for an award of fees on the fee litigation); Thompson v.
Gomez, 45 F.3d 1365, 1367-68 (9th Cir. 1995) (applying Jean to a 1988 fees claim);
Serrano v. Unruh, 32 Cal. 3d 621, 639 (1982) (all hours reasonably spent establishing
and defending a fee claim are compensable under California Code of Civil Procedure
section 1021.5); Vo v. Las Virgenes Municipal Water District, 79 Cal. App. 4th 440, 448
(2000) (time spent defending fees in FEHA action compensable).
Plaintiffs may retain special fees counsel to prepare their fee applications, and
both merits and fees counsel are entitled to compensation for non-duplicative time. Gates
v. Rowland, 39 F.3d 1439 (9th Cir. 1994); Davis v. City & County of San Francisco, 976
F.2d 1536, 1544, amended in non-relevant part, 984 F.2d 345 (9th Cir. 1993).
Under federal law, time spent collecting fee awards is compensable. Spain v.
Mountanos, 690 F.2d 742, 747 (9th Cir. 1982); Balark v. Curtin, 655 F.2d 798 (7th Cir.
1981). State law may govern the filing and disposition of a post-judgment motion for
fees incurred in enforcing a judgment. Carnes v. Zamani, ___ F.3d ____, 2007 WL

1584579 (9th Cir. 2007) (post-judgment motion is a proceeding[] supplementary to and

in aid of a judgment under Fed. R. Civ. P. 69).
The same is generally true under California law. See Cal. Code of Civ. Proc.
685.040 (attorneys fees for collecting a judgment in a contract action are compensable if
the underlying judgment permits an award of attorneys fees); Ketchum v. Moses, 24 Cal.
4th 1122, 1141 n.6 (attorneys fees available for time spent on fee-related issues so long
as fees are available on the underlying judgment).
However, parties entitled to attorneys fees under California Code of Civil
Procedure section 1021.5 may have to make an additional showing under that provision
to recover fees for collection-related services. Estate of Cirone, 189 Cal. App. 3d 1280,
1292-93 (1987) (reversing trial courts supplementary award; remarking that no case
states that parties obtaining attorney fee awards pursuant to section 1021.5 are also
entitled to further attorney fees under that section for their efforts to collect a final fee
award; allowing that fees may be awarded on a showing that efforts to compel payment
themselves resulted in enforcement of an important right affecting the public interest).