Notice Of Appeal Required

Whitaker v. Garcetti, 2007 U.S. App. LEXIS 11012 (May 10)

On appeal, plaintiff objected to the denial of attorney’s fees. The Ninth Circuit dismissed this aspect of the appeal, because it lacked jurisdiction: “Plaintiffs never filed a notice of appeal on this claim as required by Federal Rule of Appellate procedure 3(a)(1).” Under all circumstances, “a party wishing to challenge the attorney fees decision must file a notice of appeal, or an amended notice of appeal specifying its appeal of that decision.”

Hearing Officer’s Determination Supports IDEA Fees

A.O. v. Los Gatos-Saratoga School District, 2007 U.S. App. LEXIS 10918 (May 9)

Pursuant to the Individuals with Disabilities Education Act (IDEA), plaintiff’s mother sought a determination that her child was eligible for special education. The hearing officer found that he had been eligible, but because the school was in the process of reassessing the student’s status, he limited the finding to a prior time period. As a result, the district court found that plaintiff was not a prevailing party, maintaining that the hearing officer’s determination did not change the legal relationship between plaintiff and defendant. The Ninth Circuit reversed.  Because of the hearing officer’s determination that the student was previously eligible for special education services, “she automatically remained eligible. Accordingly, the school district was required to develop an IEP for her, absent conducting a new evaluation.”  Noting that “the eligibility determination is the lynchpin of all rights under the IDEA,” the Ninth Circuit emphasized that “the hearing officer’s decision materially altered the legal relationship between the parties in a manner that cannot be considered de minimus.”       

Minor Recovery Supports Significant Fees

Morales v. Vela, 2007 U.S. App. LEXIS 10884 (May 8)

In this case brought pursuant to the Fair Labor Standards Act (FLSA), 29 U.S.C. 201, a jury awarded several plaintiffs roughly $5,000 cumulatively for defendant’s failure to pay overtime as appropriate. The trial court awarded attorney’s fees totaling $51,750. On appeal, defendant argued that the award was excessive given the limited recovery. The Fifth Circuit rejected that argument, because “the district court properly considered the plaintiffs’ limited recovery when it reduced the lodestar amount by ten percent.”

Attorneys’ Rates For Paralegal Work Inappropriate

Robinson v. Chand, 2007 U.S. Dist. LEXIS 32347 (May 2)

The Eastern District of California reduced a requested attorney’s fees award because various tasks performed by the attorney could have been delegated to a paralegal: “paralegal work should be billed at an appropriate rate, regardless of the status of the person actually undertaking the work.” Here, the tasks that should have been billed at paralegal rates included preparing cover sheets, converting computer files, mailing and arranging for service of documents, scheduling matters, organizing case files, researching non-legal matters and preparing boilerplate documents. 

Paralegal Fees Excluded

Martinez v. Maroni, 2007 U.S. Dist. LEXIS 32366 (May 2)

While attorney’s fees awards often include compensation for work by paralegals (at paralegal rates), courts may exclude such fees if the work could have been done by someone other than a paralegal. Here, the eastern District of California excluded several hours for “tasks more appropriately handled by a secretary than a paralegal.”

Non-Local Rates Must Be Justified

Fair Housing Council v. Davis, 2007 U.S. Dist. LEXIS 31476 (Apr.30)

In this Southern District of Georgia case, plaintiff sought attorney’s fees pursuant to 42 U.S.C. 3613 (c)(2) after prevailing on Fair Housing Act claims. Plaintiff had employed California counsel, and sought fees at California rates. The court rejected the application of out-of-market rates, because plaintiff failed to show that the case could not have been handled by local counsel. 

EAJA Tort Exception Strictly Applied

Kashin v. Kent, 2007 U.S. Dist. LEXIS 30800 (Apr. 26)

Defendant successfully defended against this tort claim when the Ninth Circuit ruled that he was acting within the scope of his employment and thus entitled to immunity.  Defendant then sought attorneys’ fees pursuant to the Equal Access to Justice Act (EAJA). The Southern District of California rejected the request, because the EAJA authorizes attorneys’ fees in civil actions “other than cases sounding in tort.” Defendant advanced various reasons why the tort exception should not be applied in this case, but the court held that the “plain language” of the statute dictated rejection of these arguments.   

EAJA’s Thirty Day Deadline Firm

Hernandez-Garcia v. Nicholson, 2007 U.S. App. LEXIS 10117 (May 2)

Under the Equal Access to Justice Act, an attorney’s fees application must be filed within thirty days of final judgment. 28 U.S.C. 2412(d)(1)(B). Here, the Federal Circuit affirmed the dismissal of a claim filed thirty-one days after decision by the Veterans Court. The court of appeals rejected the argument that the thirty day period begins on the day the judgment is no longer appealable rather than the day (which is the previous day) the period of appeals expires.