United States District Court, D. Oregon
MICHAEL H. SIMON, UNITED STATES DISTRICT JUDGE
February 2017, Plaintiff filed a complaint against Defendants
alleging violations of the Americans with Disabilities Act
and Oregon disability law. ECF 1. On September 1, 2017,
Plaintiff filed his acceptance of Defendants' offer of
judgment in the amount of $101, 000, which included a
provision for “reasonable attorney's fees and costs
incurred in presenting this action.” ECF 19. Plaintiff
now moves for an award of $21, 077.50 in attorney's fees
and $1, 286.97 in costs and expenses. ECF 25. Defendant
Kroger filed a response (ECF 31), objecting only to the
hourly rate for Attorney Daniel Snyder (“Mr. Snyder
”), one of the two attorneys for whom Plaintiff
requests fees, on the basis that the proposed rate is not
reasonable. The Court finds that the requested attorney's
fees are reasonable.
is entitled to recover his attorney fees, expenses and costs
pursuant to the fee shifting provisions of the Americans with
Disabilities Act, 42 U.S.C. § 12205. A district
court's disposition of a motion for attorney's fees
must “provide a reasonably specific explanation for all
aspects of a fee determination” in order to allow for
“adequate appellate review.” Perdue v. Kenny
A. ex rel. Winn, 559 U.S. 542, 558 (2010). The preferred
method of calculating reasonable attorney's fees is the
“lodestar” method. Id. at 551-52. This
is because “the lodestar method produces an award that
roughly approximates the fee that the prevailing
attorney would have received if he or she had been
representing a paying client who was billed by the hour in a
comparable case, ” is “readily administrable,
” and is “objective.” Id.
(emphasis in original). Additionally, one purpose of federal
fee-shifting statutes is to ensure that a prevailing
plaintiff's counsel receive a fee that is
“sufficient to induce a capable attorney to undertake
the representation of a meritorious . . . case.”
Id. at 552. The lodestar method of calculating
attorney's fees “yields a fee that is presumptively
sufficient to achieve this objective.” Id.
Although the lodestar calculation results in a presumptively
reasonable fee, this fee may be adjusted in certain
lodestar amount is the product of the number of hours
reasonably spent on the litigation multiplied by a reasonable
hourly rate. McCown v. City of Fontana, 565 F.3d
1097, 1102 (9th Cir. 2009). In making this calculation, the
district court should take into consideration various factors
of reasonableness, including the quality of an attorney's
performance, the results obtained, the novelty and complexity
of a case, and the special skill and experience of counsel.
See Perdue, 559 U.S. at 553-54; Gonzalez v. City
of Maywood, 729 F.3d 1196, 1209 n.11 (9th Cir. 2013).
Defendants do not contest the reasonableness of the number of
hours billed by Plaintiffs' attorneys.
determining the number of hours reasonably spent, the
district court then calculates the reasonable hourly rates
for the attorneys and paralegals whose work comprise the
reasonable number of hours. This calculation yields the
lodestar amount. For this purpose, the
“‘prevailing market rates in the relevant
community' set the reasonable hourly rates.”
Gonzalez, 729 F.3d at 1205 (quoting Dang v.
Cross, 422 F.3d 800, 813 (9th Cir. 2005)).
“‘Generally, when determining a reasonable hourly
rate, the relevant community is the forum in which the
district court sits.'” Id. (quoting
Prison Legal News v. Schwarzenegger, 608 F.3d 446,
454 (9th Cir. 2010)). Within this geographic community, the
district court should consider the experience, skill, and
reputation of the attorneys or paralegals involved.
determining reasonable hourly rates, typically
“[a]ffidavits of the plaintiffs' attorney and other
attorneys regarding prevailing fees in the community, and
rate determinations in other cases, particularly those
setting a rate for the plaintiffs' attorney, are
satisfactory evidence of the prevailing market rate.”
United Steelworkers of Am. v. Phelps Dodge Corp.,
896 F.2d 403, 407 (9th Cir. 1990). In addition, courts in the
District of Oregon have the benefit of several billing rate
surveys. One useful, albeit somewhat outdated, survey is the
Oregon State Bar 2012 Economic Survey (“
Survey”), which contains data on attorney billing rates
based on type of practice, geographic area of practice, and
years of practice. A copy of the Survey is available at
(last visited on December 15, 2017). So long as attorneys
address the OSB 2012 Survey in their fee petitions, and
provide justification for requesting hourly higher than those
reported by the Survey, “Attorneys may argue for higher
rates based on inflation, specialty, or any number of other
factors.” U.S. District Court, District of Oregon,
Message from the Court Regarding Attorney Fee Petitions,
(last updated March 2, 2017).
is a strong presumption that the fee arrived at through the
lodestar calculation is a reasonable fee. Perdue,
559 U.S. at 552. A district court may, however, adjust the
lodestar amount in “rare” and
“exceptional” cases, such as when a particular
factor bearing on the reasonableness of the attorney's
fee is not adequately taken into account in the lodestar
calculation. See Perdue, 559 U.S. at 552-54
(finding that, in certain circumstances, the superior
performance of counsel may not be adequately accounted for in
the lodestar calculation); Cunningham v. Cnty. of Los
Angeles, 879 F.2d 481, 488 (9th Cir. 1988) (finding that
although in ordinary cases the “results obtained”
factor is deemed adequately accounted for in the lodestar
calculation, it may serve as a basis to adjust the lodestar
when “an attorney's reasonable expenditure
of time on a case [is not] commensurate with the fees to
which he [or she] is entitled”).
requests $16, 155.00 in fees for the work of Mr. Snyder,
reflecting an hourly rate of $450.00 per hour for 39.5 hours.
According to the OSB 2012 Survey, a $400.00 hourly rate for
an attorney in private practice with over 30 years of
experience is in the 75th percentile of rates in Portland. A
$500.00 hourly rate for the same lawyer is in the 95th
percentile. Mr. Snyder has been practicing law in Portland,
Oregon for approximately thirty-eight years. ECF 26 (Decl.
Daniel Snyder) ¶¶ 2-3. After working as a
prosecutor, and then an attorney for the City of Portland for
several years, Mr. Snyder has predominately practiced civil
rights and employment law. Id. ¶¶ 5-6. Mr.
Snyder 's hourly rate was $350 per hour for many years.
Id. ¶ 13. He was awarded attorney fees at this
rate in federal district court three times from 2011 through
2012. Id. In 2014, he increased his rate to $400 per
hour to adjust for inflation and to better reflect his skills
and experience. Id. at ¶ 14. He was twice
awarded attorney fees in federal district court at this rate
in 2015. Id.
objects that Plaintiff has not sufficiently justified being
paid at a rate above the 75th percentile for Portland, and
argues that an hourly rate of $400, is an “appropriate
and reasonable rate.” Defendant notes that per the OSB
2012 Survey, the median rate for an attorney with 30
years' experience is only $350 per hour, and
Defendant's own counsel with similar litigation
experience billed $315 per hour to $385 per hour in defending
the case at hand. ECF 32 ¶¶ 3-5.
noted above, the OSB 2012 Survey is outdated. Five years have
elapsed since the data in that survey was published. Two
years ago, courts in this district found that Mr. Snyder
's skill and experience justified hourly rates in the
75th percentile in employment cases similar to this one.
Plaintiff argues in his reply brief (ECF 33) that in the five
years between the OSB 2007 Survey and the OSB 2012 Survey,
the 75th percentile hourly rate increased from $350 in 2007
to $400 in 2012, reflecting an increase of over 14%.
See ECF 34-1 (OSB 2007 Survey Excerpt) at 4. A
similar percentage increase in the 75th percentile rates
between 2012 and 2017 would result in a 2017 75th percentile
rate of $457.00-a rate $7.00 higher than that requested by
Plaintiff for Mr. Snyder . Although this methodology does not
produce a perfectly reliable estimate of the
“prevailing market rates in the relevant community,
” it does lend support to Plaintiff's
inflation-based argument for an hourly rate at the higher end
of the spectrum of fees described in the OSB 2012 Survey.
Plaintiff has persuasively argued that inflation and Mr.
Snyder 's further accrued experience justify a reasonable
increase in his hourly rate.
Court has reviewed the fee petition and its supporting
documents and has considered the quality of the performance
by Plaintiff's counsel, the results obtained, the novelty
and complexity of this case, and the special skill and
experience of counsel. Based on these considerations, the
Court finds that the requested hourly rates and the hours
spent are reasonable. Accordingly, the Court calculates the
lodestar as follows:
Mr. Snyder: 35.9 hours x $450.00 per hour = $ 16, 155.00
Mr. Burgess: 17.9 hours x $275.00 per hour = $4, 922.50
the total lodestar amount is $21, 077.50. Defendant does not
object to Plaintiff's request for $1, 286.97 in costs and
expenses and the Court finds the request reasonable. The
Court also has considered the facts and circumstances of this
case and does not find that it is a rare or exceptional case
requiring an adjustment to the lodestar. The ...