United States District Court, D. Oregon
OPINION & ORDER
A. HERNANDEZ UNITED STATES DISTRICT JUDGE.
Judge Acosta issued a Findings & Recommendation (#44) on
November 3, 2017, in which he recommends the Court grant in
part and deny in part both Plaintiff's motion for
attorney's fees and her cost bill. Plaintiff has timely
filed objections to the Findings & Recommendation. The
matter is now before me pursuant to 28 U.S.C. §
636(b)(1) and Federal Rule of Civil Procedure 72(b).
any party objects to any portion of the Magistrate
Judge's Findings & Recommendation, the district court
must make a de novo determination of that portion of
the Magistrate Judge's report. 28 U.S.C. §
636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932
(9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc).
carefully considered Plaintiff's objections and other
than the issues discussed below, conclude there is no basis
to modify the Findings & Recommendation. I have also
reviewed the pertinent portions of the record de
novo and find no other errors in the Magistrate
Judge's Findings & Recommendation. I adopt the
Findings & Recommendation in part and modify it in part.
decision, Judge Acosta reduced Plaintiff's attorney's
fee request based on his determinations that: (1) the terms
of Defendants' Offer of Judgment which Plaintiff accepted
allowed for fees incurred only up to the date of the Offer of
Judgment and not thereafter; (2) the requested hourly rates
for three attorneys and one paralegal were too high; and (3)
some of the hours claimed were not reasonably expended.
F&R at 6-20. He also reduced the requested costs because
some amounts claimed were unsubstantiated and Plaintiff was
not entitled to a prevailing party fee. Id. at
objects only to the hourly rate determinations. I have reviewed
the entire F&R and find no error in the determinations
made about the dates for which attorney fee's may be
incurred under the terms of the Offer of Judgment or in the
reductions for time spent. I also find no error in the
reductions to the requested costs. I address only the hourly
Acosta recited the correct law for determining a reasonable
hourly rate. F&R at 8. As Judge Acosta also noted, this
Court's Local Rules make clear that the Court "uses
the most recent Oregon State Bar Economic Survey as its
initial benchmark." Loc. R. 54-3. The rule acknowledges
that "[a]ttorneys may argue for higher rates based on
inflation, specialty, or other factors." Id.
The Court requests, however, that fee petitions address the
survey and provide justification for requested hourly rates
higher than reported there. Id.
seeks attorney's fees for lead attorney Craig Crispin,
attorneys Shelley Russell and Paul Judd, and paralegals
Jacqueline Burnett and David Zambrano. Judge Acosta awarded
the requested rate of $75 for time spent by Zambrano, but
reduced the requested hourly rates for all other
supported the attorney's fee request with a Memorandum,
his own Declaration, and the Declaration of Portland attorney
Courtney Angeli. ECF 27, 29, 30. Judge Acosta noted several
facts related to Crispin's requested hourly rate of $525,
including his law school graduation, his membership in both
the Oregon and Washington Bars, that he is the managing
shareholder and president of his firm, that he has practiced
in the area of complex employment law and employment-related
civil rights litigation for the past thirty-five years, that
he has been recognized annually as an Oregon Super Lawyer in
the areas of employment and labor and employment litigation
since 2006, and has been on the "List of Best Lawyers in
America -Employment Law - Individuals" since 2015.
F&R at 8.
Acosta did not expressly mention that during his career,
Crispin has litigated hundreds of federal court cases, has
handled numerous appeals in the Ninth Circuit, and has argued
before the United States Supreme Court. Crispin Decl. ¶
10, ECF 27. Judge Acosta also did not mention that Crispin is
the author of a number of articles and program materials and
speaks on labor and employment litigation topics.
Id. ¶ 19. He has also been invited to speak at
the annual meetings of the American Bar Association and the
National Employment Lawyers Association. Id. ¶
20. He has served as an officer and member of the Executive
Committee of the Oregon State Bar Section on Disability Law
and the Labor and Employment Section. Id. ¶ 21.
He is a member of the Oregon State Bar Disciplinary Board.
instructed by the Court, Crispin cites to the most recent
Oregon State Bar Economic Survey ("the 2012
Survey"). Id. ¶¶ 53-56. While Crispin
disputes the relevance and weight the Court should give to
the 2012 Survey, he notes that the 2012 Survey shows an
average billing rate for Portland attorneys with over thirty
years of experience at the 75th and 95th percentiles as $400
and $500 respectively. Id. ¶ 55; see
also Angeli Decl., Ex. A, ECF 29-1 (2012 Survey showing
(1) average 2012 hourly billing rate for private practice
attorneys in Portland without regard to years of experience
or area of practice, to be $350 for the 75th percentile and
$450 for the 95th percentile; (2) average 2012 hourly billing
rate for private practice attorneys in Portland with more
than thirty years of experience to be $400 for the 75th
percentile and $500 for the 95th percentile; (3) average 2012
hourly billing rate for private practice attorneys in
Portland without regard to years of experience but whose area
of practice is plaintiff's civil litigation excluding
personal injury, to be $300 for the 75th percentile and $400
for the 95th percentile).
states that in his opinion, the prevailing market rate for an
attorney with thirty- five or more years of experience
performing complex litigation in a specialty area such as
employment litigation comparable to his, is in the upper
percentile of rates charged and ranges from $475 to $575 per
hour. Crispin Decl. ¶ 29. The relevant market for
comparison is Portland. Id. He explains that updated
by the Bureau of Labor Statistics Consumer Price Index, the
2017 hourly rates range from approximately $430 to $540.
Id. ¶ 55. His requested $525 hourly rate is
consistent with those rates. Id. Moreover, he
explains that he knows of no other lawyer in Oregon with his
combination of exclusive work in employment law, peer
recognition, organization ratings, professional assessments,
and speaking engagements. Id. ¶ 53.
an employment law practitioner, opines that the requested
hourly rate is reasonable. Angeli Decl. ¶ 23, ECF 29.
She notes that Crispin is among the most experienced and
respected employment lawyers in Portland and the state, is an
extremely skilled practitioner, and is "truly a market
leader." Id. She describes him as being
"among the best in the employment law arena[.]"
Id. Further, she believes that Crispin's
"exceptional credentials and accomplishments ...