Maria Barrios v. Diamond Contract Services, Inc

FILED
NOT FOR PUBLICATION DEC 13 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIA BARRIOS, No. 09-55603
Plaintiff - Appellant, D.C. No. 2:07-cv-03500-R-FMO
v.
MEMORANDUM *
DIAMOND CONTRACT SERVICES,
INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Argued and Submitted December 6, 2011
Pasadena, California
Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.
Appellant Maria Barrios was a prevailing plaintiff in an action brought under
Title VII and California’s Fair Employment and Housing Act. Barrios appeals the
denial of statutory attorney’s fees and partial denial of costs. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pursuant to 28 U.S.C. § 1291. We reverse and remand to a new district court judge
for a proper fee calculation.
“We review the award or denial of attorney’s fees for abuse of
discretion . . . .” Coal. for Clean Air v. S. Cal. Edison Co., 971 F.2d 219, 229 (9th
Cir. 1992). “We will reverse if the district court misperceives or misapplies the
law governing fee awards.” Id.
1. In Title VII cases, a prevailing plaintiff “ordinarily is to be awarded
attorney’s fees in all but special circumstances.” Christiansburg Garment Co. v.
EEOC, 434 U.S. 412, 417 (1978). The district court abused its discretion when it
determined that special circumstances justified a complete denial of attorney’s
fees. The contingency fee agreement between Barrios and her counsel was not a
special circumstance. Attorney’s fees under Title VII belong to the party, and Title
VII’s fee-shifting provision does not “regulate what plaintiffs may or may not
promise to pay their attorneys if they lose or if they win.” Venegas v. Mitchell, 495
U.S. 82, 86–87 (1990).1 The “ultimate disposition” of the fee award is “dependent
on the contract between the lawyer and the client.” Gilbrook v. City of
Westminster, 177 F.3d 839, 875 (9th Cir. 1999); see also Los Angeles Cnty. Bar
1
Cases interpreting 42 U.S.C. § 1988 also apply to Title VII’s fee-shifting
provision. Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1541 n.1 (9th
Cir. 1992).
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Assoc., Prof’l Resp. & Ethics Comm., Op. 523 (2009) (concluding that a similar
fee arrangement did not violate the California Rules of Professional Conduct). The
district court’s other concerns — including whether the hours billed were
reasonable, whether counsel’s billing records were adequate, and whether Barrios
achieved limited success on the merits — should have been subsumed in a lodestar
calculation. Hensley v. Eckerhart, 461 U.S. 424, 433–35 (1983); Mendez v. Cnty.
of San Bernardino, 540 F.3d 1109, 1128–29 (9th Cir. 2008); Morales v. City of
San Rafael, 96 F.3d 359, 363–65 (9th Cir. 1996); Cunningham v. Cnty. of Los
Angeles, 879 F.2d 481, 486 (9th Cir. 1988).
2. The district court also misapplied the law when it determined that
Barrios was not entitled to any fees or costs after Diamond Contract Services made
a Rule 68 offer of judgment. The district court should have compared the offer of
judgment to the jury verdict plus Barrios’s reasonable attorney’s fees and costs
incurred at the time the Rule 68 offer was made. Corder v. Gates, 947 F.2d 374,
380 n.9 (9th Cir. 1991).
3. We instruct the Chief Judge for the Central District of California to
reassign this case to a different district judge on remand. Our supervisory powers
under 28 U.S.C. § 2106 permit us to reassign cases on remand when “unusual
circumstances” are present. United Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d
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1102, 1118 (9th Cir. 2001). Reassignment is warranted here because the judge
may “have substantial difficulty in putting out of his . . . mind previously expressed
views or findings determined to be erroneous,” making “reassignment . . .
advisable to preserve the appearance of justice.” Id. (quoting United States v.
Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir. 1986)). Given the limited
scope of an attorney’s fees determination, any minimal potential for waste or
duplication is outweighed by the need to preserve the appearance of fairness. Id. at
1118–19.
REVERSED and REMANDED for a proper fee calculation before a
different district court judge.
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