United Steelworkers v. Retirement Income Plan for Hourly-Rated Employees of Asarco, Inc. ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STEELWORKERS OF AMERICA; 
ALBERTO AGUILAR, JR.; ANGEL L.
ARELLANO; JESUS M. CANABA;
FRANCISCO CARREON; FRANKLIN
DAVILA; JAIME O. FRAUSTO;
ARMANDO B. HIDALGO; SANTIAGO
MARTINEZ; HECTOR OCHOA; ISMAEL
ORTEGA; MAURICIO ORTEGA;
LORENZO RAMIREZ; SERGIO
RAMIREZ; ERNESTO ROBLES; CARLOS No. 05-16833
RODRIGUEZ; ROBERTO ROMO;
RAMON SANCHEZ; ARTURO R.
 D.C. No.
CV-04-00010-
SAUCEDO; UNITED STEELWORKERS OF DCB/JJM
AMERICA, AFL-CIO, CLC; JESUS
M. URANGA; RUBEN R. VILLARREAL,
Plaintiffs-Appellees,
v.
RETIREMENT INCOME PLAN FOR
HOURLY-RATED EMPLOYEES OF
ASARCO, INC.; ASARCO, INC.,
Defendants-Appellants.

121
122 UNITED STEELWORKERS v. RETIREMENT INCOME PLAN
ALBERTO AGUILAR, JR.; ANGEL L. 
ARELLANO; JESUS M. CANABA;
FRANCISCO CARREON; FRANKLIN
DAVILA; JAIME O. FRAUSTO;
ARMANDO B. HIDALGO; SANTIAGO
MARTINEZ; HECTOR OCHOA; ISMAEL
ORTEGA; MAURICIO ORTEGA;
LORENZO RAMIREZ; SERGIO
RAMIREZ; ERNESTO ROBLES; CARLOS
RODRIGUEZ; ROBERTO ROMO;
RAMON SANCHEZ; ARTURO R. No. 06-15862

SAUCEDO; UNITED STEELWORKERS OF D.C. No.
AMERICA, AFL-CIO, CLC; JESUS CV-04-00010-DCB
M. URANGA; RUBEN R. VILLARREAL,
Plaintiffs-Appellees, OPINION
v.
RETIREMENT INCOME PLAN FOR
HOURLY-RATED EMPLOYEES OF
ASARCO, INC.,
Defendant-Appellant,
and
ASARCO, INC.,
Defendant.

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted
October 15, 2007—San Francisco, California
Filed January 7, 2008
UNITED STEELWORKERS v. RETIREMENT INCOME PLAN 123
Before: J. Clifford Wallace and Johnnie B. Rawlinson,
Circuit Judges, and Jane A. Restani,* Judge.
Opinion by Judge Wallace
*The Honorable Jane A. Restani, Chief Judge, United States Court of
International Trade, sitting by designation.
UNITED STEELWORKERS v. RETIREMENT INCOME PLAN 125
COUNSEL
John Alan Doran and Leigh Anne Ciccarelli, Greenberg
Traurig, LLP, Phoenix, Arizona, for the appellants.
Robert J. Stock and Jay Smith, Gilbert & Sackman, Los
Angeles, California, for the appellees.
OPINION
WALLACE, Senior Circuit Judge:
The Retirement Income Plan for Hourly-Rated Employees
of ASARCO, Inc. (the Plan) appeals from the district court’s
summary judgment in favor of United Steelworkers of Amer-
ica, AFL-CIO (the Union), and twenty individually named
retirees (the named appellees). The Plan also appeals from the
district court’s order granting attorney’s fees and denying its
motion to stay. We have jurisdiction pursuant to 28 U.S.C.
§ 1291. We affirm the district court’s summary judgment and
its denial of the Plan’s motion to stay. Although we agree
126 UNITED STEELWORKERS v. RETIREMENT INCOME PLAN
with the district court’s award of attorney’s fees, we remand
to determine what effect, if any, the automatic stay in place
for ASARCO, Inc. (ASARCO) should have on payment of
the award.
I.
ASARCO owns and operates a copper smelter plant in El
Paso, Texas. Beginning in early 1999, the company substan-
tially reduced operations at the plant, and began laying off
employees. Among those laid off were the twenty named
appellees. Under the relevant pension plan documents, these
employees were entitled to collect immediate, unreduced
retirement benefits if they qualified for “70/80” benefits.
These benefits accrued to any claimant who could demon-
strate that (1) he was laid off due to a permanent shutdown,
(2) he was younger than 55 years, and (3) his age plus years
of “Continuous Service” equaled at least 80. All of the named
appellees were under the age of 55 at the time they applied for
benefits. Applicants over the age of 55 were only required to
demonstrate an age plus years of Continuous Service equal to
70, hence the term “70/80 benefits.”
In 2001, after intense negotiations, the Union and
ASARCO agreed that the staff reductions at ASARCO’s El
Paso plant would be treated as a “permanent shutdown” for
purposes of calculating pension benefits. When the named
appellees subsequently applied for 70/80 benefits, however,
ASARCO denied their claims on the ground that their com-
bined age and years of Continuous Service totaled less than
80.
The plan documents provide that employees may continue
to accrue years of Continuous Service for up to two years
after they are laid off. This concept is known as “creep,” as
it allows otherwise ineligible employees to “creep” into pen-
sion benefits. Although the combined age and years of Con-
tinuous Service of the named appellees did not total more than
UNITED STEELWORKERS v. RETIREMENT INCOME PLAN 127
80 at the commencement of layoff, at least some of the indi-
viduals would be entitled to 70/80 benefits if an additional
two years of “creep” were added to the calculation.
On August 21, 2002, the Union filed a grievance on behalf
of the named appellees, arguing that ASARCO had violated
the collective bargaining agreement by failing to pay 70/80
benefits to the named appellees. ASARCO denied the griev-
ance on September 26, 2002. A year later, the Union submit-
ted a request for a panel of arbitrators to the Federal
Mediation and Conciliation Service. When ASARCO refused
to arbitrate, the Union filed a complaint in the district court
to compel arbitration of the benefits claims under section
301(a) of the Labor Management Relations Act (LMRA) and
section 502 of the Employee Retirement Income Security Act
(ERISA). The complaint named both ASARCO and the Plan
as defendants.
The district court entered summary judgment in favor of
the Union. With respect to the Union’s ERISA claims, how-
ever, the court held that the Union was not a proper party, and
gave the Union ten days to substitute the named appellees in
an amended complaint. The court made its summary judg-
ment expressly contingent on this substitution.
The Union then filed an amended complaint adding the
named appellees. Four days later, ASARCO filed for bank-
ruptcy, resulting in an automatic stay of proceedings with
respect to ASARCO pursuant to 11 U.S.C. § 362(a). The Plan
then filed a motion in the district court to stay all proceedings.
Meanwhile, the Union filed a motion for attorney’s fees and
costs, seeking $143,156.25. In an order dated March 13, 2006,
the district court awarded $140,556.25 in attorney’s fees and
denied the Plan’s motion to stay.
The Plan has timely appealed from the district court’s sum-
mary judgment and from the order denying its motion to stay
and awarding attorney’s fees. Both appeals were consolidated.
128 UNITED STEELWORKERS v. RETIREMENT INCOME PLAN
II.
We review the district court’s summary judgment de novo.
See Buono v. Norton, 371 F.3d 543, 545 (9th Cir. 2004). Our
review in this case is limited. We are not required to deter-
mine whether the named appellees were entitled to 70/80 ben-
efits, only whether they had the right to arbitrate their claims.
See AT&T Techs., Inc. v. Commc’ns Workers of Am., 475 U.S.
643, 649-50 (1986). Both parties have presented a plausible
interpretation of the relevant plan documents, and the out-
come of this case ultimately turns on whether we apply a pre-
sumption of arbitrability.
A.
[1] In 1960, the Supreme Court decided a series of cases
known as the Steelworkers Trilogy: United Steelworkers of
America v. American Manufacturing Co., 363 U.S. 564(1960); United Steelworkers of America v. Warrior & Gulf
Navigation Co., 363 U.S. 574 (1960); and United Steelwork-
ers of America v. Enterprise Wheel & Car Corp., 363 U.S.
593 (1960). The Court held that national labor policy favored
arbitration, and courts should therefore apply a presumption
in favor of arbitration to disputes arising from collective bar-
gaining agreements. The Court instructed:
An order to arbitrate the particular grievance should
not be denied unless it may be said with positive
assurance that the arbitration clause is not suscepti-
ble of an interpretation that covers the asserted dis-
pute. Doubts should be resolved in favor of
coverage.
Warrior & Gulf Navigation Co., 363 U.S. at 582-83 (footnote
omitted). The Court reaffirmed this principle more recently in
AT&T Technologies, 475 U.S. at 650. The Court held that the
presumption of arbitrability “recognizes the greater institu-
tional competence of arbitrators in interpreting collective-
UNITED STEELWORKERS v. RETIREMENT INCOME PLAN 129
bargaining agreements, furthers the national labor policy of
peaceful resolution of labor disputes and thus best accords
with the parties’ presumed objectives in pursuing collective
bargaining.” Id. at 650 (internal citation and quotations omit-
ted).
The Plan argues that the presumption of arbitrability is
inapplicable here because the named appellees are retired. As
such, they “pose no risk of labor disruption,” and their claims
“do not implicate federal labor policy.” To support this argu-
ment, the Plan relies on the Eighth Circuit case of Anderson
v. Alpha Portland Industries, Inc., 752 F.2d 1293 (8th Cir.
1985).
[2] In Anderson, a group of union employees worked under
a collective bargaining agreement with a cement company,
which provided for health insurance benefits upon retirement.
After the employees retired, however, the plant closed, the
local union dissolved, and the company terminated insurance
benefits for retirees. Id. at 1294. When the retirees sought
redress in federal court, the district court dismissed their case
on the grounds that they had not exhausted the administrative
remedies in their contract, which called for mandatory arbitra-
tion. Id. at 1295. The Eighth Circuit, en banc, reversed and
held that the presumption of arbitrability did not apply to the
retirees. One of the reasons the court gave for disregarding the
presumption was that “[r]etirees have no recourse to eco-
nomic weapons other than a hope that active employees will
strike on their behalf.” Id. at 1298.
[3] In Anderson, the retirees posed little threat of economic
disruption, because their union had dissolved and their plant
had closed. The union was not a party in the proceedings, and
the district court was effectively forcing the retirees into arbi-
tration against their will. In contrast, other circuits have
explicitly applied the presumption of arbitrability in cases
where a union is actively seeking arbitration on behalf of its
retirees. In Cleveland Electric Illuminating Co. v. Utility
130 UNITED STEELWORKERS v. RETIREMENT INCOME PLAN
Workers, Local 270, 440 F.3d 809, 814 (6th Cir. 2006), a
union filed a grievance on behalf of a group of retirees. The
union argued that the presumption of arbitrability should
apply,“because it was the Union not the retirees who filed the
grievance and the dispute is actually between the Union and
Cleveland Electric.” Id. The court agreed, and held that “the
presumption of arbitrability applies to disputes over retirees’
benefits if the parties have contracted for such benefits in their
collective bargaining agreement . . .” Id. at 816.
Likewise, in the recent case of United Steelworkers of
America v. Cooper Tire & Rubber Co., 474 F.3d 271 (6th Cir.
2007), the Sixth Circuit specifically rejected the argument that
retirees pose no threat of economic disruption. The court held:
Because it is the Union, not a third party beneficiary,
that brought the grievance . . . there is recourse to
economic weapons such as striking. Moreover, even
though the class consists of all non-Union member
Retirees and Survivors, the Union still has an interest
in resorting to economic weapons in order to main-
tain the integrity of the bargaining process.
Id. at 281. Finally, in United Steelworkers of America v. Can-
ron, Inc., 580 F.2d 77 (3d Cir. 1978), a case cited in Ander-
son, the Third Circuit explicitly applied the presumption of
arbitrability when a union filed a grievance on behalf of a
group of retirees. Id. at 82.
[4] In the present case, it was the Union that sought arbitra-
tion, the Union that filed a complaint to compel arbitration,
and the Union that actively pursued the litigation that fol-
lowed. As a result, the threat of economic disruption is pres-
ent to a much greater degree than it was in Anderson, and this
case is more analogous to Cleveland Electric, Cooper Tire,
and Canron. Therefore, we will not depart from the rule
established by the Supreme Court in the Steelworkers Trilogy,
and we will apply the presumption of arbitrability in this case.
UNITED STEELWORKERS v. RETIREMENT INCOME PLAN 131
B.
The Union and the Plan present competing interpretations
of the relevant plan documents. The Plan characterizes the
dispute over 70/80 benefits as a broad question of contract
interpretation, one that is only properly resolved through the
internal grievance procedure. The Union characterizes the dis-
pute much more narrowly. It argues that the dispute is more
akin to a ministerial disagreement over “age” and years of
“Continuous Service.”
To support its position, the Plan points to language in the
first paragraph of the Summary Plan Description, which pro-
vides that all questions related to (1) “the interpretation of the
Plan,” (2) “eligibility of employees,” and (3) “the amount of
benefits payable in each individual case” are to be resolved
through the internal grievance procedure. The Plan argues that
the question of whether the named appellees can “creep” into
coverage is ultimately a question of contract interpretation,
one that will require an examination of the bargaining process
that led to the plan documents.
In response, the Union cites language in the Pension and
Disability Benefits Agreement which provides arbitration for
disputes as to either “(a) the number of years of Continuous
Service of an Employee” or “(b) the age of such Employee.”
The Union also points to language in the Summary Plan
Description that describes arbitration as the “exclusive reme-
dy” for disputes as to these two issues. Under the Union’s
interpretation, every employee is automatically entitled to two
additional years of Continuous Service when he is laid-off.
Therefore, when the retirees dispute the denial of their bene-
fits, it is analytically no different than if ASARCO made a
mistake as to an employee’s numerical age or start-date of
employment.
[5] We need not decide which side presents the better argu-
ment. Once we apply the presumption of arbitrability, the
132 UNITED STEELWORKERS v. RETIREMENT INCOME PLAN
question becomes much easier. We can only deny arbitration
if it can be said “with positive assurance” that the dispute is
“not susceptible of an interpretation” that would cause it to
fall within the arbitration clause. Warrior & Gulf Navigation
Co., 363 U.S. at 582-83. Whether the Union’s interpretation
is the more persuasive of the two, it is at the very least a rea-
sonable interpretation of the relevant language. Therefore, we
hold that the district court did not err when it entered sum-
mary judgment in favor of the Union.
C.
The Plan offers two remaining arguments as to why arbitra-
tion is inappropriate. First, the company asserts that the
Union’s request for arbitration was untimely. We have
imposed a six-month statute of limitations for claims under
section 301 of the LMRA. See Local Joint Exec. Bd. of Las
Vegas, Bartenders Union Local 165 v. Exber, Inc., 994 F.2d
674, 675 (9th Cir. 1993). This six-month period “begins to
run from the time one party makes it clear that it will not sub-
mit the matter to arbitration.” Id. (citation omitted).
[6] In August 2002, the Union filed a grievance under the
collective bargaining agreement. On September 26, 2002,
ASARCO sent a letter to the Union rejecting its grievance and
stating “[t]hese issues are not an appropriate subject for the
grievance and arbitration process.” The Plan argues that this
letter constituted a clear refusal to arbitrate, and the statute of
limitations for filing a claim under the LMRA expired long
before the Union filed its claim. However, the September 26,
2002 letter, by its terms, only constituted a denial of the
Union’s request to arbitrate its collective bargaining agree-
ment grievance. In fact, the letter specifically directs the
Union to the “separate claims procedure” for the benefits
plan. Thus, the district court did not err when it determined
the Union’s LMRA claim to be timely. Nor did the district
court violate Rule 56 when it decided the question on sum-
mary judgment. The district court was only required to draw
UNITED STEELWORKERS v. RETIREMENT INCOME PLAN 133
“all justifiable inferences” in favor of ASARCO, Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), and the lan-
guage in ASARCO’s letter is quite clear.
The Plan also argues that the retirees may not take advan-
tage of the arbitration provision because they stopped being
“employees” when they retired. Before we undertake a textual
analysis of the relevant plan documents, it is important to rec-
ognize the practical ramifications of the Plan’s argument. If
the Plan is correct, then an employee who wants to challenge
his pension can only do so before leaving the company, and
before receiving a pension. If a recent retiree opened his first
pension check and was surprised to find less than he had
anticipated, he would be locked out of the very mechanism set
up to resolve the dispute. With that in mind, we turn to the
conflicting textual interpretations.
The Plan argues that retirees who wish to challenge their
benefit calculations may only do so through the internal griev-
ance procedure outlined in the Summary Plan Description.
Under the terms of that document, the internal grievance pro-
cedure is available for “any application for a claim or bene-
fits” by “the claimant.” The Summary Plan Description then
defines “claimant” to include “a surviving spouse, a retired
employee or a terminated employee.” In contrast, the Plan
argues, the clear terms of the arbitration procedure provide
that it “applies only to bargaining unit employees” and makes
no mention of “claimants” or “retirees.”
In response, the Union points to the Pension and Disability
Benefits Agreement. Under the terms of that document, arbi-
tration is available for any dispute that may “arise between
any Employee (as defined in the Plans) and the Company.”
Although the definition of “Employee” does not specifically
include retirees, the Union points to two other definitions to
support its argument. First, the Summary Plan Description
defines “Pensioner” as “an Employee who retires under the
Plan and is entitled to Retirement Income Benefits pursuant
134 UNITED STEELWORKERS v. RETIREMENT INCOME PLAN
to the Plan.” In addition, it defines “Terminated Employee” as
“an Employee who is terminated for any reason . . .” The
Union essentially argues that although “Employee” is not
defined to include retirees, the functional equivalent of retir-
ees (Pensioners and Terminated Employees) are defined in
such a way that they necessarily qualify as “Employees.” Fur-
thermore, the Union points out that to the extent this interpre-
tation conflicts with the text of the Summary Plan
Description, it is entitled to rely on the more favorable lan-
guage from the Pension and Disability Benefits Agreement.
See Bergt v. Ret. Plan for Pilots Employed by MarkAir, Inc.,
293 F.3d 1139, 1145 (9th Cir. 2002).
[7] It is a close question as to which side presents the better
textual interpretation of the plan documents. However, given
the inherent absurdity of creating a pension dispute mecha-
nism and then denying access to pensioners, and given our
duty, under Bergt, to defer to the Pension and Disability Ben-
efits Agreement when it conflicts with the Summary Plan
Description, we hold that retirees are not excluded from the
arbitration procedure.
III.
The Plan also appeals from the District Court’s March 13,
2006 Order denying its Motion to Stay. We review the district
court’s decision for abuse of discretion. Sheet Metal Workers
Int’l Ass’n v. Jason Mfg., Inc., 900 F.2d 1392, 1400-01 (9th
Cir. 1990).
The crux of the Plan’s argument is that because ASARCO
is subject to an automatic stay in bankruptcy court, and
because ASARCO is a necessary party to this litigation, the
entire proceeding should be stayed. However, the Plan never
directly argues that ASARCO is a necessary party to this liti-
gation. Instead, the Plan rests its entire argument on the alleg-
edly contradictory positions taken by the Union at various
stages of the litigation.
UNITED STEELWORKERS v. RETIREMENT INCOME PLAN 135
In 2004, the Plan and ASARCO filed a motion to dismiss,
arguing that ASARCO was not a proper defendant in an
ERISA action. In response, the Union argued that ASARCO
was a proper party, because in addition to being an employer,
ASARCO acted as a plan administrator. The Union’s memo-
randum in opposition to motion to dismiss included the fol-
lowing:
ASARCO is the Plan Administrator, and, therefore,
its inclusion as a defendant in this action is wholly
appropriate. An order compelling arbitration must
necessarily include ASARCO, as it is party to the
relevant collective bargaining agreements setting
forth the obligation to arbitrate, it is the party that
would appear before any arbitrator, and it is the party
that would implement any orders of the arbitrator in
the present dispute.
The Plan argues that the Union is barred, by the doctrine of
judicial estoppel, from opposing the motion to stay, since the
Union argued in 2004 that ASARCO was a necessary party to
the litigation.
We generally consider three factors when determining
whether to apply the doctrine of judicial estoppel. First, we
determine whether “a party’s later position [is] ‘clearly incon-
sistent’ with its earlier position.” New Hampshire v. Maine,
532 U.S. 742, 750 (2001) (citations omitted). Second, we
inquire whether the party achieved success in the prior pro-
ceeding, since “judicial acceptance of an inconsistent position
in a later proceeding would create ‘the perception that either
the first or the second court was misled.’ ” Id. (citation omit-
ted). Finally, we consider whether the party asserting an
inconsistent position would achieve an unfair advantage if not
estopped. Id. at 751.
[8] The Plan has not demonstrated these factors in the pres-
ent case. First, it is not clear that the Union’s 2004 position
136 UNITED STEELWORKERS v. RETIREMENT INCOME PLAN
in its opposition to ASARCO’s motion to dismiss was neces-
sarily inconsistent with its later position in opposition to stay.
There is a crucial distinction between arguing that a party is
proper and should not be dismissed, and arguing that a party
is necessary and the litigation cannot proceed without it. More
importantly, the district court never held that ASARCO was
a necessary party to the litigation. Instead, the district court
held only that ASARCO “acted as plan administrator” and
was therefore “a proper party to this action.” Because the Plan
has failed to demonstrate the first two elements of our judicial
estoppel analysis, we hold that the doctrine does not apply,
and do not need to reach the third element of unfair advan-
tage.
We also reject the Plan’s argument that the doctrine of “law
of the case” applies. The “law of the case acts as a bar only
when the issue in question was actually considered and
decided by the first court.” United States v. Cote, 51 F.3d 178,
181 (9th Cir. 1995). Because the district court never held that
ASARCO was a necessary party to the litigation, the doctrine
does not apply.
IV.
Finally, the Plan appeals from the district court’s award of
attorney’s fees. We review the district court’s decision for
abuse of discretion. Thomas v. City of Tacoma, 410 F.3d 644,
647 (9th Cir. 2005).
The Plan concedes that, as a general rule, the prevailing
party on an ERISA claim is entitled to attorney’s fees, “unless
special circumstances would render such an award unjust.”
Hensley v. Eckerhart, 461 U.S. 424, 429 (1983) (quotations
and citation omitted). The Plan rests its entire argument,
therefore, on the distinction between the Union and the indi-
vidual named appellees. The Plan argues that it was the Union
that filed the lawsuit and the Union that incurred the attor-
ney’s fees, but it was the named appellees that prevailed,
UNITED STEELWORKERS v. RETIREMENT INCOME PLAN 137
since the district court conditioned its summary judgment on
their substitution for the Union. This argument elevates form
over substance. The Union brought this litigation on behalf of
its retirees, and it prevailed. The fact that the district court
only “conditionally granted” the Union’s motion for summary
judgment is of no real consequence.
The Plan also argues that the district court erred when it
failed to address specifically each of the factors from Hum-
mell v. S. E. Rykoff & Co., 634 F.2d 446, 452-53 (9th Cir.
1980). As an initial matter, the district court was not required
to engage in a discussion of the Hummell factors, because the
Union prevailed on its motion for summary judgment. See
Nelson v. EG & G Energy Measurements Group, Inc., 37 F.3d
1384, 1392 (9th Cir. 1994). Furthermore, the district court
did, in fact, address the Hummell factors in a lengthy footnote.
The Plan next argues that the district court abused its dis-
cretion when it calculated the Union’s legal fees at an average
of $300 per hour, because counsel maintained a discounted
fee arrangement with the Union and only charged $100 to
$110 per hour. But “[w]e have repeatedly held that the deter-
mination of a reasonable hourly rate is not made by reference
to the rates actually charged the prevailing party.” Welch v.
Metro. Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007) (cita-
tion and quotations omitted). Instead, as the district court cor-
rectly held, the starting point for calculating attorney’s fees is
“the prevailing market rate[ ] in the relevant community.” Bell
v. Clackamas County, 341 F.3d 858, 860 (9th Cir. 2003).
To calculate the prevailing market rate for ERISA-related
legal work, the district court relied on Morgan v. Wal-Mart
Associates’ Health and Welfare Plan, 214 F. Supp. 2d 1047(D. Ariz. 2002). In Morgan, the court found that in 2002, “the
customary fee charged by ERISA plaintiff’s attorneys in Ari-
zona is $275 per hour.” Id. at 1054. The district court took
that number and adjusted it upwards slightly to account for
inflation.
138 UNITED STEELWORKERS v. RETIREMENT INCOME PLAN
[9] The district court also relied on a declaration from the
Union’s counsel, which established that the firm typically
charged a blended rate of $300 per hour for ERISA-related
work. The district court could properly rely on this declara-
tion. See United Steelworkers of Am. v. Phelps Dodge Corp.,
896 F.2d 403, 407 (9th Cir. 1990) (“Affidavits of the plain-
tiffs’ attorney and other attorneys regarding prevailing fees in
the community, and rate determinations in other cases, partic-
ularly those setting a rate for the plaintiffs’ attorney, are satis-
factory evidence of the prevailing market rate”). The Plan has
offered no evidence to support a lower market rate for
ERISA-related work. Accordingly, we hold that the district
court did not abuse its discretion when it set $300 per hour as
a reasonable hourly rate.
[10] The Plan also argues that the district court abused its
discretion in awarding attorney’s fees, asserting that almost
every entry on the Union’s time sheet was improper, either
because it was insufficiently detailed or because it improperly
aggregated more than one task in a single description. As the
party seeking attorney’s fees, the Union bore “the burden of
documenting the appropriate hours expended in the litiga-
tion,” and was required to “submit evidence in support of
those hours worked.” Gates v. Deukmejian, 987 F.2d 1392,
1397 (9th Cir. 1992) (citation omitted). However, attorneys
are “not required to record in great detail how each minute of
[their] time was expended.” Hensley, 461 U.S. at 437 n.12.
They need only “keep records in sufficient detail that a neutral
judge can make a fair evaluation of the time expended, the
nature and need for the service, and the reasonable fees to be
allowed.” Id. at 441 (Burger, C.J., concurring). We have
reviewed the relevant time records, and hold that they are suf-
ficiently detailed for the district court to have made a determi-
nation of reasonableness.
[11] Finally, the Plan argues that the district court abused
its discretion when it awarded legal fees against both
ASARCO and the Plan, because ASARCO is subject to an
UNITED STEELWORKERS v. RETIREMENT INCOME PLAN 139
automatic stay in bankruptcy. The Union contends that
ASARCO is not precluded from contributing its share of the
fees, because under 11 U.S.C. § 1113 and § 1114, actions
seeking to enforce a collective bargaining agreement are not
subject to automatic stay. This issue has not been fully briefed
before the district court, and we are not in a position to decide
the question now. Therefore, we remand to the district court
to decide the issue or refer the matter to the bankruptcy court
to determine what effect, if any, the automatic stay should
have on the district court’s award of attorney’s fees.
AFFIRMED in part and REMANDED in part.