Two decisions from the Ninth Circuit today, with a bearing on employee advocates: a partial reversal (on rehearing) and remand of a racial harassment complaint; and reversal of 40% cut in an attorney-fee award in a civil rights case. Notably, the authors of both opinions are regarded as “conservative” on that bench.
Johnson v. Riverside Healthcare, No. 06-55280 (9th Cir. July 28, 2008): In its original decision (516 F.3d 759 (9th Cir. 2008)), the panel had affirmed a judgment dismissing a complaint filed by a doctor who claimed that he suffered a hostile work environment because of race. The complaint alleged the following incident:
“The first was particularly serious. According to Johnson, a colleague, Dr. Vlasak, admonished him by using a racial slur after Johnson performed surgery on one of Vlasak’s patients. As the facts are set forth in Johnson’s complaint, Vlasak failed to review the patient’s CT scan and consequently failed to realize that the patient was suffering from a skull fracture with an underlying brain contusion. Upon discovering the problem, Johnson admitted the patient for surgery and performed the necessary procedure. When Vlasak learned that Johnson had corrected (and therefore exposed) his oversight, Vlasak moved as if to strike Johnson, ‘charged’ into the room where Johnson was standing and ‘screamed . . . ‘You fucking nigger-why did you do that to me?'”
The first panel opinion had supposed that these allegations constituted the entirety of the hostile work environment, and found that it failed to state a claim. but on rehearing, in an opinion signed by Judge O’Scannlain, the panel retrenched:
First, Johnson’s encounter with Dr. Vlasak, in which Vlasak uttered a racial epithet and moved as if to strike him, was a serious act of discrimination. While ‘an isolated incident of harassment by a co-worker will rarely (if ever) give rise to a reasonable fear that [such] harassment has become a permanent feature of the employment relationship,’ Johnson’s complaint contains other relevant allegations. While the complaint does not allege that Johnson was present at the time when the African-American residency candidate’s application was rejected or when the members of the Residency Selection Committee’s offensive remarks were made, discriminatory conduct directed at an individual other than the plaintiff may be relevant to a hostile work environment claim. Finally, the allegations of the nurse’s ‘repeated’ requests that Johnson remove trash from the Operating Room, which she viewed as ‘funny,’ are also relevant to his §1981 claim. We have previously held that a coworker’s use of a ‘code word or phrase’ can, under certain circumstances, contribute to a hostile work environment. While we are not obligated to accept every conclusory allegation as true, we believe the inference that racial animus motivated the nurse’s frequent requests that Johnson perform the tasks of a maintenance man is a reasonable one that we must construe in his favor at the motion to dismiss stage.” [Citations and footnote omitted]
While the court a firmed dismissal of several other state law claims, at least part of Dr. Johnson’s case now goes forward.
Moreno v. City of Sacramento, No. 06-15021 (9th Cir. July 28, 2008): Chief Judge Alex Kozinski writes that “[l]awyers must eat, so they generally won’t take cases without a reasonable prospect of getting paid.” As Congress meant to attract legal representation in civil rights cases — and not slowly starve attorneys out of their practices — it took the step (in § 1988 and other statutes) of providing a court-ordered fee award for the prevailing plaintiff/party. But district courts sometimes go on a tear, such as when they feel plaintiffs’ counsel went overboard. As a safeguard against punitive cuts in fee requests, fee-setting judges must furnish a “comprehensible” explanation for how they set a fee, with appellate review for abuse of discretion. As the panel notes, “Where the difference between the lawyer’s request and the court’s award is relatively small, a somewhat cursory explanation will suffice. But where the disparity is larger, a more specific articulation of the court’s reasoning is expected.”
And so, in this case, the district court (in a § 1983 due process/takings case) slashed 40% from the lodestar amount, and the Ninth Circuit panel vacated and remanded. The panel faults the district court with three particular errors. First, the judge disallowed without explanation 171 out of 227.9 hours for research time that the judge considered duplicative. Yet as the panel noted, a case that goes on for years cannot rely on old research, which must be regenerated anew to keep up-to-date. Moreover:
“It must also be kept in mind that lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their fees. The payoff is too uncertain, as to both the result and the amount of the fee. It would therefore be the highly atypical civil rights case where plaintiff’s lawyer engages in churning. By and large, the court should defer to the winning lawyer’s professional judgment as to how much time he was required to spend on the case; after all, he won, and might not have, had he been more of a slacker.”
Second, district court inexplicably halved the time that the lawyer dedicated to interviews and investigation. As the panel held:
“This 50 percent reduction is not supported by the district court’s cursory explanation. The district court apparently rejected defendant’s argument for the cut-that the interviews and investigation were unnecessary because much of the information was not used at trial-and held that the work was ‘appropriate.’ But the court then concluded that counsel ‘spent an unreasonable amount of time engaged in this activity,’ and that ‘[t]his time should be reduced by 50%,’ without further explaining this dramatic reduction.”
Finally, the district court penalized the lawyers for top-heavy assignment of duties to higher-billing counsel:
“[I]t is by no means clear whether a larger law firm would have billed more or less for the entire case. The district court may have been right that a larger firm would employ junior associates who bill at a lower rate than plaintiff’s counsel, but a larger firm would also employ a partner-likely billing at a higher rate than plaintiff’s counsel -to supervise them. And the partner in charge would still have had to familiarize himself with the documents, a step that plaintiff’s counsel avoided by reviewing the documents herself. Moreover, lead counsel can doubtless complete the job more quickly, being better informed as to which documents are likely to be irrelevant, and which need to be examined closely.”
The panel remanded the case with a well-placed cautionary note to district courts throughout the circuit:
“We are well aware that awarding attorneys’ fees to prevailing parties in civil rights cases is a tedious business. And it may be difficult for the district court to identify the precise spot where a fee request is excessive. But the burden of producing a sufficiently cogent explanation can mostly be placed on the shoulders of the losing parties, who not only have the incentive, but also the knowledge of the case to point out such things as excessive or duplicative billing practices. If opposing counsel cannot come up with specific reasons for reducing the fee request that the district court finds persuasive, it should normally grant the award in full, or with no more than a haircut.”
Nice, for once, to have the burden placed where it ought to belong — on the opponents of full compensation.