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Ninth Circuit: Big City Rates Proper Where Local Counsel Unavailable

November 21, 2018 | Posted in : Contingency Fees / POF, Fee Award, Fee Issues on Appeal, Hourly Rates / Hourly Billing, Lodestar / Multiplier, Prevailing Party Issues

A recent Metropolitan News story, “Award of Attorney Fees at ‘Big City’ Rate Proper Where Local Counsel Unavailable,” reports that the Ninth U.S. Circuit Court of Appeals has upheld a $135,876.75 attorney fee award to a special-needs student’s mother who prevailed in an administrative proceeding under the Individuals with Disabilities Education Act, rejecting the contention of the defendant, Tehachapi Unified School District, that fees should be set at a rate no higher than what local lawyers charge.

The district is located in a sparsely populated 522 square-mile mountainous area of Kern County, west of the Mojave Desert.  Plaintiff Charis Quatro, whose son suffers from a birth defect affecting the spine—resulting in his needing to use a walker and wear foot braces—engaged the services, on a contingency-fee basis, of attorney Andréa Marcus, whose office is in the City of Santa Barbara, to pursue remedies based on a refusal by the district to provide tutoring to the boy while recuperating from surgery.

District Court Judge Donald W. Molloy of the Eastern District of California set the fees for Marcus at $450 an hour, and the appeals court, in a memorandum opinion found that to be “a reasonable hourly rate” for her.  The panel was comprised of Circuit Judges Raymond C. Fisher and Milan D. Smith Jr., joined by District Court Judge Elaine E. Bucklo of the Northern District of Illinois, sitting by designation.

Marcus had sought $475 for her own work in connection with the administrative proceeding and her services in seeking an order for fees in the District Court, and less for hours put in by associates who devoted time to the case. Molloy found that that Marcus, in light of her experience in special education matters, was entitled to $450 an hour.  The judge multiplied the rate by the number of hours, but made some downward adjustments.

Responding to the district’s argument that it should not have to pay at big-city rates, and that fees should be set at $300 per hour or less, the opinion declares:  “The district court did not abuse its discretion in calculating the lodestar using rates from outside the local market.”  The opinion points to the Ninth Circuit’s 1997 decision in Barjon v. Dalton—which did not depart from the “local forum rule,” under which fees are ordered in accordance with the prevailing rates in the community—but it differentiates the factual circumstances.

The court in Barjon rejected the prevailing plaintiffs’ contention that their San Francisco attorney should be paid in accordance with the prevalent San Francisco rate—then $250 an hour—rather than the rate prevailing in the forum, Sacramento, which was $200 an hour. In that case, the plaintiffs did not show unavailability of local counsel capable of handling employment discrimination cases.  “Without evidence that Sacramento rates preclude the attraction of competent counsel, their argument remains too theoretical to warrant departure from the local forum rule…,” the 1997 opinion says.

By contrast, Monday’s opinion sets forth that Quatro provided her own declaration and that of two other persons, each a parent of a special needs pupil, to the effect that local counsel was unavailable to serve them.  It says Quatro presented “reports describing the limited access to legal representation in rural California and declarations describing the lack of local attorneys who were willing and qualified to represent clients in special education matters.”

In her trial brief, Marcus provided this factual summary: “The Defendant abandoned Plaintiff for 21-weeks (out of a 35-week school year), while he was recovering from multiple surgeries—dis-enrolling him from school, instead of providing home instruction while he recuperated from surgery, as is required by law.  This is the core of the dispute, as this child is bright and capable, yet lost most of a school year when the Defendant shrugged its legal duty to R.Q., a child with grave disabilities.  At the time of the underlying hearing, R.Q. was five years old, and had already undergone multiple complicated and painful surgeries in his short life.”  Following a four-day hearing, an administrative law judge awarded the boy 105 hours of instruction and ordered that Quatro be reimbursed for her transportation costs.

In an amicus curiae brief filed in the Ninth Circuit, the Council of Parent Attorneys and Advocates. Inc. said: “Here, Appellant Tehachapi Unified School District…seeks an outcome with potentially far-reaching and dangerous consequences for students with disabilities.  It seeks to slash the court-awarded hourly rate of $450 for an experienced special education attorney, by as much as two-thirds because it claims that $150-300 is the prevailing rate in Tehachapi without any proof that there was another equally qualified attorney in that underserved area willing to serve R.P. on a contingent basis….

“Essentially, the District is asking this Court to hold that, even when families cannot find local counsel willing and able to capably represent students in special education matters, attorneys who leave their own (more remunerative) markets to provide much needed legal support in underrepresented communities should never receive awards at their standard hourly rate.  Such a precedent would require attorneys working outside their standard markets to take on matters in underrepresented markets at a rate dramatically lower than they could command in their own markets, where attorneys are already in high demand.  Such a precedent would have a chilling effect on the willingness of qualified special education attorneys to take cases on in underrepresented markets.”

Both that brief and the one filed in the Ninth Circuit by Quatro make reference to a discovery response from the school district listing 35 attorneys it deemed qualified to handle special-needs cases; only four were located in Kern County, one having only four years’ experience in law practice, two with three years’ experience, and one who had resigned from the State Bar with charges pending.

Marcus asserted in her brief that the school district’s appeal “is pursued merely for the purpose of delay which has the real effect of discouraging other civil rights attorneys from practicing special education law on a pure contingency basis, further prejudicing families like the Quatro’s who would not have meaningful access to the judicial system otherwise.”

The case is Quatro v. Tehachapi Unified School District, 17-16210.  In a memorandum decision filed yesterday in Wright v. Tehachapi Unified School District, 17-16970, the same panel affirmed an award of attorney fees to parents who prevailed in an administrative action under the Individuals with Disabilities Education Act.  There, however, the school district acknowledged that local counsel was not available.  Marcus was also the attorney in that case.

Magistrate Judge Jennifer L. Thurston of the Eastern District of California made an award of $99,330.00 for services in the administrative proceeding and $39,087.50 for work done in the District Court.  She based the award on prevailing rates in the Central District.