in other contexts. However the fact that deeming, as a general concept, has been upheld is simply beside the point. No one in this case has ever disputed that deeming can not occur in the proper context.
The government's final argument is that language in the Ninth Circuit's December 13, 1991 memorandum opinion shields it from any liability for fees. As explained below, however, this argument is equally unavailing.
Of the many rulings entered in this action, only one was appealed. That ruling, contained in an order issued June 8, 1990, concerned a narrow remedial issue (involving one step of the state of California's proposed method for determining the income and need of California's Medi-Cal Family Budge Units). As required by Ninth Circuit rules, plaintiffs included a statement in their appellate brief that they intended to seek attorney fees if they prevailed on appeal. Neither plaintiffs nor defendants briefed the issue of fees.
On December 13, 1991, the Ninth Circuit affirmed the Court's June 8, 1990 order on merits. At the same time, it also ruled that plaintiffs were not entitled to recover fees for the appeal under section 28 U.S.C. § 2412(d) because the government's position was substantially justified. Dec. 13, 1991 Memorandum Opin. at 10-11.
Federal defendants argue that under the "law of the case" doctrine, the Ninth Circuit's ruling prevents this Court from determining whether the government's underlying conduct was "substantially justified." The fatal flaw in this argument is that the only matter before the Court of Appeals, and the only matter considered, was a single issue concerning California's proposed remedial plan. See Memorandum Opin. at 1, n. 1 ("The only issue presently before this Court is the propriety of the June 8 order") (emphasis added). Thus, the only "position" the Court of Appeals could have evaluated for "substantial justification" was the Secretary's litigation position regarding the June 8, 1990 order on appeal. Indeed, the Court of Appeals never once discusses or addresses the Secretary's underlying conduct in its decision.
It is well settled that the Law of the Case doctrine only "operates to preclude a reexamination of issues of law decided on appeal, explicitly or by necessary implication." Chapman v. Nat'l Aeronautics and Space Administration, 736 F.2d 238, 240 (5th Cir.), cert.denied, 469 U.S. 1038, 83 L. Ed. 2d 406, 105 S. Ct. 517 (1984). Given the above, it is clear that the Ninth Circuit neither explicitly, nor by necessary implication, evaluated or passed judgment on the government's underlying conduct in this case. Accordingly, defendants' argument regarding the law of the case must be rejected.
In sum, and for all the foregoing reasons, we conclude that the government has not met its burden of demonstrating that its underlying position, which necessitated this litigation, was substantially justified, "that is, justified to a degree that could satisfy a reasonable person." Pierce, 487 U.S. at 565, 108 S. Ct. at 2550. Indeed, there are few cases in which this Court could imagine the government's underlying conduct having less justification than in the instant case.
The determination that the government's prelitigation position was not substantially justified acts as a "one-time threshold for fee eligibility." Jean, 110 S. Ct. at 2320. Thus, plaintiffs are presumptively entitled to a fee award which "encompasses all aspects of the civil action," absent some unreasonably dilatory conduct by the prevailing party on any portion of the action, which is not a factor here. Id. see also, id. at 2322 ("The purpose and legislative history of the statute reinforce our conclusion that Congress intended EAJA to cover the cost of all phases of successful civil litigation addressed by the statute"). Accordingly, plaintiffs are presumptively entitled to recover for all phases of this litigation.
3. Special Circumstances
A court may deny fees to a prevailing party even where the government's position was not substantially justified, if special circumstances would make an award unjust. 28 U.S.C. § 2412(d)(1)(A). This provision, however, should only be invoked with caution. J & J Anderson, Inc. v. Town of Erie, 767 F.2d 1469, 1474 (10th Cir. 1985); Martin v. Heckler, 773 F.2d 1145, 1150 (11th Cir. 1985) (special circumstances exception should be narrowly construed). Federal defendants do not point to any special circumstances that would make an award unjust in this case, and we find none either.
4. Timeliness of Application
Under 28 U.S.C. § 2412(d), the plaintiff must submit an application for attorneys' fees within 30 days of final judgment. This is a mandatory, jurisdictional condition. Shalala v. Schaefer, 125 L. Ed. 2d 239, 113 S. Ct. 2625, 2632 (1993); Olson, 830 F.2d at 821.
Defendants contend that plaintiffs' request for fees is untimely because it was not filed within 30 days of this Court's December 11, 1990 order, which extended the Court's earlier ruling against the State defendants to the Federal defendants. Alternatively, Defendants argue that the application should have been filed within 30 days of February 26, 1991, which is the date that the appeal from the December 11, 1990 order was dismissed. Both arguments are meritless since the December 11, 1991 order was clearly not a final judgment. Melkonyan v. Sullivan, 501 U.S. 89, 111 S. Ct. 2157, 2162, 115 L. Ed. 2d 78 (1991); Fed. R. Civ. P. 58. Rather, we agree with plaintiffs that, if anything, the request for fees is premature. However, this does not preclude the Court from acting on the instant motion because fees may be awarded on an interim basis. Golden Gate Audobon Society, Inc. v. U.S. Army Corps of Engineers, 738 F. Supp. 339, 341 (N.D. Cal. 1988).
DETERMINATION OF A REASONABLE FEE
Where, as here, the plaintiffs have satisfied the conditions for recovering attorneys' fees under § 2412(d), we must determine what fee is "reasonable." The process for determining a reasonable fee under 28 U.S.C. § 2412(d) is the same as that followed in cases awarding fees under 42 U.S.C. § 1988. Jean, 110 S. Ct. at 2320. ("once a private litigant has met the multiple conditions for eligibility for EAJA fees, the district court's task of determining what fee is reasonable is essentially the same as that described in Hensley [v. Eckerhart]").
Accordingly, we must determine the number of hours reasonably expended in the litigation and multiply that figure by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433-34, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983); Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1993). This figure, which is commonly referred to as the lodestar, may then be increased or decreased based on certain factors that are not subsumed within the initial calculation of the lodestar. D'Emanuele v. Montgomery Ward & Co., Inc., 904 F.2d 1379, 1383 (9th Cir. 1990). However, such upward or downward adjustments are "the exception rather than the rule since the lodestar amount is presumed to constitute a reasonable fee." Id.; Gates, 987 F.2d at 1397.
1. Number of Reasonable Hours Expended
It is plaintiffs' burden to "document the appropriate hours expended in the litigation" by submitting evidence in support of those hours worked." Gates, 987 F.2d at 1397. The appropriate number of hours includes all time "reasonably expended in pursuit of the ultimate result achieved, in the same manner that an attorney traditionally is compensated by a fee-paying client for all time reasonably expended on a matter." Hensley, 461 U.S. at 431. However, it does not include hours that are "excessive, redundant, or otherwise unnecessary because, for example, the case is overstaffed." Id. at 433, 437, 103 S. Ct. at 1939-40.
Plaintiffs have submitted detailed declarations and supporting time sheets demonstrating that they have spent a total of 1428 hours litigating the merits of this action. Under Jones v. Espy, 10 F.3d 690 (9th Cir. 1993), plaintiffs have allocated these hours between purely state, purely federal and joint state-federal matters. The hours set forth below represent those hours spent on purely federal matters and 50 percent of those hours spent on joint state-federal matters. Rubin Supp. Decl. P 4 -6 and Ex. A & C.
Fed. Hrs 1/2 Jt. Hrs Total Hrs
Evelyn Frank 443.45 87.53 530.98
Michael Parks 127.00 8.5 135.50
Jane Perkins 19.00 2.38 21.38
Mark Regan 31.50 4.0 35.50
© 1992-2004 VersusLaw Inc.