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Ninth Circuit:
Judge Acted Precipitously in Setting Attorney-Fee Award
Majority Says That Once Plaintiff in Action Under Americans with Disabilities Act Indicated She Would Seek Fees by Motion After Default Was Entered, Judge Should Have Awaited Motion Rather Than Utilizing District’s Fixed Fee Schedule; Smith Dissents
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals on Friday held in a 2-1 opinion that a District Court judge erred in setting an attorney-fee award in an action under the Americans with Disabilities Act in accordance with a schedule contained in a local rule rather than honoring a request that an award be made under the lodestar method, with a dissenter maintaining that the majority is confused because no such request was made.
Writing for himself and District Court Judge Stephen Joseph Murphy III of the Eastern District of Michigan, sitting by designation, Senior Judge A. Wallace Tashima said:
“We hold that where, as here, a prevailing party advises the district court that it is opting out of the fee schedule and will seek, by motion, an award of reasonable attorney’s fees, the district court abuses its discretion by disregarding the plaintiff’s choice and sua sponte awarding attorney’s fees under the fee schedule.”
Seeking the fees is paraplegic Amber Machowski, a model/actress, who sued the owner of City Market Liquor II in Fullerton based on lack of wheelchair access to the premises. She applied for a default judgment, indicating that “plaintiff will separately file a motion for her attorney fees and costs once this application is granted and judgment has been entered.”
Machowski obtained injunctive relief; Judge David O. Carter declined to exercise supplemental jurisdiction over a claim under California’s Unruh Act, which provides (unlike the ADA) for monetary awards; and declared:
“Pursuant to Local Rule 55-3, attorneys’ fees for a default judgment are determined pursuant to a fixed percentage schedule….Pursuant to this rule, the Court grants $1,000 in fees.”
(He did not explain how he arrived at that figure; the rule sets forth a schedule tying the fee to the amount of the monetary recovery, and there was no monetary recovery.)
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Above is model Amber Machowski, pictured with her wheelchair. The Ninth U.S. Circuit Court of Appeals on Friday vacated a $1,000 attorney-fee award to her in her Americans With Disabilities Act action against the owner of a liquor store she could not enter in the wheelchair in light of barriers, holding that she must be given an opportunity to have a motion heard for an award according to the lodestar method, rather than a schedule. |
2018 Decision
In his opinion vacating the award and remanding the case, Tashima cited the Ninth Circuit’s 2018 decision in Vogel v. Harbor Plaza Center, LLC. In that case, Circuit Judge Susan P. Graber wrote for the majority. She noted that the plaintiff, as the prevailing party, was entitled to an award of attorney fees under the ADA. While the Central District’s Local Rule 55-3 provides a schedule, Graber pointed out that it also says that a party may request a fee outside the schedule, in which event the judge “shall hear the request and render judgment for such fee as the Court may deem reasonable.”
The judge in that case set a $600 award in accordance with the schedule and, in response to the plaintiff’s motion for a greater amount, determined that a “modification” was not warranted. Graber wrote:
“We read the local rule to require a different procedure. If a party seeks a fee ‘in excess of’ the schedule and timely files a written request to have the fee fixed by the court then the court must hear the request and award a ‘reasonable’ fee. That process does not describe a ‘modification’ of the schedule of fees. Rather, it prescribes an alternative process when a party invokes it in the proper way at the proper time. When a party invokes that process, the court is obliged to calculate a ‘reasonable’ fee in the usual manner, without using the fee schedule as a starting point.”
Tashima’s Opinion
Tashima said that under Vogel, Machowski was entitled to have fees set under the lodestar method (a reasonable hourly fee times the number of hours reasonably expended), but that entitlement was conditioned on the filing of a motion, with documentation. But, he observed, Carter “cut short the procedure for determining a reasonable attorney’s fee by sua sponte awarding fees, supposedly pursuant to Rule 55-3, without giving Plaintiff the opportunity to file a fee motion.” The plaintiff, nonetheless, made clear in his application for entry of a default that she was seeking a setting of fees pursuant to the lodestar method, Tashima wrote, commenting:
“At that point, it was incumbent upon the district court to honor Machowski’s choice or explain why it was not doing so, and the court abused its discretion by sua sponie awarding fees under a fee schedule that Machowski had opted out of, even assuming that the schedule applies to a non-monetary judgment. Although the district court’s actions may have been well-intentioned, they were, nonetheless, ill-advised, given the contusion they spawned and the right they cut off. If the court had stayed its hand, Machowski could have tiled her fee motion in due course following the entry of default judgment, and the court would have afforded her the full relief to which she was entitled, avoiding this appeal.”
Circuit Judge Milan D. Smith Jr. dissented, maintaining that “Machowski has failed to identify on appeal any error by the district court” and the majority “improperly looks beyond any claim of error actually presented to us to reach a contrary conclusion.”
He expressed this view:
“The majority claims that Machowski ‘made clear in her application for default judgment” that she was seeking a fee in excess of the Central District’s schedule. But all Machowski said in her application was that she ‘will separately file a motion for attorney fees and costs once [her] application is granted and judgment has been entered.’ She never actually filed such a request, nor did she indicate in her default-judgment application that she believed she was entitled to a fee in excess of what she would receive pursuant to the Central District’s schedule.”
He remarked: “…I fail to see how the district court erred by failing to do something it was not requested or able to do.” In his majority opinion, Tashima addressed the dissent, saying:
“We are unpersuaded by our dissenting colleague’s suggestion that Machowski forfeited her right to fees calculated under the lodestar method by failing to present the argument to the district court. We recognize that a party may forfeit her right to fees calculated under the lodestar method by failing to file a timely motion for such fees in the district court….Here, however, Machowski expressly advised the district court that she was opting out of the fee schedule and would be filing a motion for attorney’s fees following the entry of default judgment. The only reason Machowski failed to follow through on that plan was that the district court declined to honor her choice and sua sponte awarded fees under the fee schedule—actions that Machowski understandably construed as foreclosing her from pursuing fees under the lodestar method. These facts do not support a finding of forfeiture.”
He denied that the discussion in his opinion goes beyond the issue Machowski raised, pointing out that her opening brief sets forth that the issue is “Did the district court abuse its discretion in awarding attorneys’ fees in a civil rights action based on the fee schedule of [Central District Local Rule] 55-3 rather than by using the lodestar method?” Tashima said:
“That is the very question we have addressed and answered in the affirmative.”
The case is Machowski v. 333 N. Placentia Property, LLC, 21-55673.
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