good morning everyone welcome to the th circuit we're delighted to be here with you today judge miller and i would like to spend extend a special thanks to judge but he knows who is sitting with us by designation today from the southern district of california we are very grateful for his willingness to come and help us out by taking on this additional work so thank you thank you for inviting me ok we will hear the cases in the order that they appear on the calendar the st four cases which i'm not going to call out right to award a mere fraction of the attorney's fees reasonably incurred and requested by mr vargas as the prevailing party on all claims mr vargas requested just over two hundred and fifty four thousand dollars in attorney's fees reasonably  incurred over the course of two and a half years of litigation and the court awarded just seventy one seventy eight hours for a total of twenty six thousand one hundred and thirty one dollars in fees that represents ten percent of the total and ninety percent dollars and you divide twenty six thousand dollars which is what he awarded goes at about twenty six percent right it does your honor however it is a ninety percent reduction in the overall amount requested and that's not coincidental because the district court was arbitrary but didn't the judge do a really thorough analysis of how he got to the lodestar and how he came up with the number that he came up with respectively your honor i would disagree that the analysis is thorough i would point the court to this believed included multiple duplicative efforts excessive overstaffing and unnecessary hours much like the generalizations that we see in the district court's order here particularly problematic and what i think emphasizes greatly the  arbitrary decision to reduce fees by ninety percent here the court could look at the time spent in depositions alone the district court or were awarded to mr terry the lead counsel on the case just thirty three point four eight hours despite that mr terry spent forty eight hours and twenty six minutes in deposition time alone depend deposing necessary fact witnesses and the parties to the case so a total of thirty three forty eight hours for the entire two and a half year litigation not even accounting for the additional fifteen hours essentially that were spent in deposition time alone that doesn't afford mr cherry the benefit of any time spent preparing for depositions analyzing the claims as a result of that evidence discovered during those depositions and determining what motion practice in the value of the case counsel as you said a moment ago in the core of the district worth reasoning seems to have been that you got ten percent of what you were asking for it was appropriate to give you only ten percent of the indicates that one of the primary considerations is the proportionality of the damages actually awarded nineteen to versus those requested by the court mccown was clear as in morales and rivera the u s supreme court decision that it cites to you that that's not the only consideration and that leads me to my next point of error which is the district court here erroneous lee concluded clearly error that mr vargas did not obtain a monetary and non monetary success or benefit it as a blanket proposition include concluded that he  non monetary successor benefit but if you look at what happens here that there's a nearly six pretty figure settlement it's one less than the cap on damages in nevada for a county entity and the agreement indicated both sides agreed that mr marcus had prevailed on all of his claims clearly other miners similarly situated to mr vargas and mr vargas had their rights vindicated when and wh they knew about a youth training center and weighty i apologize changed its written policy there's no doubt there's no dispute here the n y t and the department of family services in nevada implemented a written policy or an order to preclude hobbling which was the unlawful conduct the uses of excessive force that happened here it changed just policy in order to preclude that that change in policy is a benefit to all minors similarly situated to mr vargas and society as a whole the goal of the underpinning of our juvenile just justice system here on ars is to rehabilitate and train minors such as mr vargas clearly a policy that precludes unlawful contact and corporal punishment such as this is a benefit to minors like mr vargas and society as a whole and that error on the court's part to not even consider that it was in some way a non monetary benefit or success it's a vindication of mr vargas rates and the rights of children similarly similarly situated to him the rd manner in which the district necessarily performed finally in closing the court should reverse in part the district court's finding awarding attorneys fees and remand with instructions that the district court must award fees with consideration for the non monetary benefit and success achieved and further instruct court that it not apply a blanket ninety percent across the board reduction in attorney's fees merely based on the ratio of the damages awarded bridge the damages incurred and i would also indicate to the court that award that's correct your honor however neither party contemplated that there would be an award of zero clearly in this case given that mr vargas prevailed on all claims and in fact this is  believe the plaintiff prevailed only on one of the nine claims here you have the opposing party submitting that plaintiff has prevailed on all claims in the amended complaint and so he's clearly the prevailing party there's a significant level of success defendant concedes that the  result here was not nominal it was not to minute missed and so the parties contemplated both sides and plaintiff entered into the settlement with the understanding that he would be able to seek fees and costs with the expectation that ninety nine thousand dollars would not be the outer balance of the monetary compensation so to conclude that that was just in the ten percent is what he expected and what he received is clear error by the court again the court doesn't account for the non monetary successor benefit that m vindicate important rights of mr vargas and children in our system similarly situated as he one question i'll make sure you have your two minutes for you mention that the settlement amount was one cent below cap that was new to me so just include i thought that was just compensatory that the one million plus was that's what the experts base their opinion for the compensatory damages on however recognizing that the cap is ninety nine million one hundred thousand dollars factored into the ninety nine thousand dollars settlement damages presented to the court is still going to be the full extent of his damages because although that may be the cap he certainly has a claim far in excess of that amount of money yeah no i guess it seems to me that fact i ask your point about facts seems to cut in your favor because if you yes you were asking for the world but in reality the most you were going to recover it sounds like was one hundred thousand you got almost all agreed you're under it with the exception of course of punitive damages which we would have bigger as the pursued but yes this clearly was not a consider a higher than proportional fiord start with the question that i just posed to us tone and tell me if you agree with what she said or not i do not firstly there was not a county in it here it was there all state entities and the tort kept the state does high one hundred thousand dollars limit on torts per client or per claimant per claim however nine hundred and eighty three actions are not limited to the tort cap the one hundred thousand dollars that was that issue here was the state board of examiners has to give prior approval to any settlement in excess of one hundred thousand dollars i just had a settlement two weeks ago for twenty five million dollars so it is possible to have it you simply need approval it's an easier process to have it for less than one hundred thousand dollars there is no limitation on one hundred thousand dollars damages and the state would be obligated to pay it so there was no one hundred thousand dollars limit they did not achieve the maximum allowable limit under state law they received less than ten percent of what they were demanding and i guess a question about that given that this was a subtle and i mean suppose they had come in and said we are asking for one hundred thousand dollars so i don't want to ask you to reveal confidential communications with your client but i will just assert that it seems to be unlikely that you would have settled that claim for one hundred thousand dollars so why should they be punished for making a sort of aggressive estimate of what the her damages were that have been induced you to settle for one hundred thousand dollars so i'm not going to make the argument that the ninety nine thousand nine hundred and ninety nine dollars was a nominal value but if we look at they're making the claim that it was an exceptional result but they asked for more than one million dollars in damages plaintive had disclosed he had already incurred more than  hundred thousand dollars in past medical expenses so to settle a case for less than the actually incurred prior medical expenses that's why we would argue this is not in fact an exceptional result that would give them the higher than proportional fiord the only other reason a court should consider a higher than proportional feel ward is with a public benefit a woman airily this claim of public benefit was raised for the st time in the reply brief on appeal but if we look at what the public benefit they're claiming is is claiming that officers that in white t c are no longer allowed to use hobbling as an allowable restraint technique for youthful offenders change that was made to in policy is much more broad than that and is demonstrably the result of not this case mr vargas filed his complaint in august of two thousand and fourteen prior to that in june of two thousand and fourteen judge void has a family court judge in las vegas received a complaint from one of his youthful offenders of disparate treatment at n y t judge w including red rock academy a year later after the two thousand and fifteen legislative session a task force was created on juvenile justice the result of that was a before seventy two dollars which was presented to the two thousand and seventeen legislature it was approved by the legislature became law the biggest result of the a b a for seventy two was the creation of the juvenile justice oversight commission and so it wasn't just what kind of restraints are allowed in whitey c they evaluated offenders in the courtroom during transport at the facilities they looked at interaction of youth parole with reducing recidivism and overseeing rehabilitation programs they looked at compliance with county health codes to make  kitchens were engaging in safe food handling and preparation they ensure that the facilities were all pretty compliant with the prison rape elimination act and so change was made there was a comprehensive overhaul to nevada's entire juvenile justice system it began before this case and it took place over the course of three years with the legislature it had nothing to do with this case mr vargas and his complaint never asked for injunctive relief only made monetary damages the settlement agreement itself was only for monetary damages there was no admission a finding of liability and so you can't make the argument now that there was this great public benefit that you achieved when really it is demonstrably the result primarily of judge weighs initiative he's been absolutely instrumental in juvenile justice reform in the state of nevada he's been on the bench over twenty years and so you can't make the argument that you achieved a public benefit that would entitle you to hire attorneys fees when the public benefit was already in motion and directly demonstrably the result of another case but you know even if we agree with you that there is no public benefit in all that's at issue is the monetary recovery you know we have a lot of cases that say that you know you can't just have a mechanical application of a ratio of the recovery to the amount soldered to the fees and so you know even if that's a dr that the court could have taken into account it seems like here the court just looked at the ratio and then stopped then to have an obligation to provide some further explanation and i believe that the district court d firstly the litigation strategy that was undertaken was to do quite a few almost a dozen depositions were taken and there were non testifying experts that were retained and those were a lot of the costs that went into this as well however a lot of the claims that were in the complaint false and they were nobley false at the outset and we learned all of that during mr vargas is deposition himself so he claimed that he had been sexually assaulted numerous times through cavity searches while in my t c in his deposition he later claim back and said yeah he had one cavity search when he st got there but it wasn't by any of the defendants he claims that his injuries here were sustained because he had been brutally assaulted by fifteen officers it turns out two officers came to his room with the incident in question he was being combative and argumentative and when he charged one of the officers they called for backup and three others showed up he was not assaulted by fifteen armed officers he claims that he was denied the ability to enlist in the military and that negatively impacted his future monetary earnings however he later in his deposition clarified he had an appointment with a marine recruiter that he chose to not go to and it wasn't because of his vision problems that he was denied the ability he chose to not attend this meeting he also claimed he was denied medical treatment but in his deposition he later clarified i never told anyone my neck was hurting even when he was transported to the hospital and a couple days later he said he didn't even have any neck pain and that's why he didn't tell anyone he was having pain so they undertook eight litigation strategy that was very costly but there were a lot of issues that they could have simply averted and gotten around and not taken such an expensive litigation strategy had they done their due diligence at the outset and pursued a different case and i ask you a question so i'm reading from accounting and there's a there's language in it  says the following it says once a district court completes its analysis of the final lodestar about the most explain how it arrived at its determination with sufficient specificity to permit an appellate court to determine whether the district court abuses this in your opinion did the district court in fact do that analysis and specify how it arrived that it's a male yes i believe judge me handed in his eleven page order he went through attorney by attorney and really looked at what all of the  reasonableness of the hours and heard and reason on this really is the amount that he a private client would pay and here a private client would not pay more than three hundred thousand dollars in fees and costs for a ninety nine thousand dollars award and if we look at what judge may have actually went through st he started with attorneys harry's hours and well you know i just jump in because i understood the judge's rationale with respect to terri and that's the big chunk that gets cut out was simply to say well if you were the senior lawyer on the case and a bunch of the stuff you billed for more junior people could have and perhaps should have done and on that basis i'm just not going towards you a penny for any of the work not like i'm going to reduce the because you already cut the hourly rate but that just struck me as not logically correct even if it was the case that maybe a more junior lawyer could have done the work that would mean you get zero dollars you would just get it compensated a lower rate right and attorneys harry wasn't g was given thirty to forty hours ultimately going to three hundred and thirty dollars for something for the three hundred hours or whatever it got just cut he got zero dollars for any of that work and nobody disputes i don't think that there was work performed the judge's complaint was simply that but you the most senior lawyer on the case did not have to be the one doing it and if you look at the reasonableness would a private client pay five hundred and fifty dollars an hour for a senior attorney to spend more than one hundred hours reviewing prior discovery that was one of the big chunks the judge may have removed was more than one hundred hours of reviewing prior discovery there was also a couple of very specific issues that he noted namely their hours spent for drafting a motion for reconsideration not only was there a motion for reconsideration that was a reason for turning terri that was for that other lawyer and that perhaps a was justly cut out right but i'm talking about the player who did the lion's share of the work hopefully on a more efficient basis than maybe a more junior lawyer would have done but yet the judge's rationale for  just cutting out the vast majority of the fees claimed was simply that you weren't the right person to do it i grant you with ribby there was some excess there some fat that could have been cut but not the sort of ninety percent across the board reduction i just  the proportionality and the reasonableness and so for the hours to have already been billed for the prior attorney on the case that we get to mr terry and he spends one hundred hours reviewing prior discovery so the client is not only paying for the discovery to be done the st time then paying again another one hundred hours for a new attorney to get up to speed and wanted her he should be able to bill for getting up to speed because that is time they actually spent you look at the reasonableness of what a private client really would pay in this case and five hundred and fifty dollars an hour for a senior attorney when he did have a junior so shit he did have a paralegal who did do some of the work there is little very little and that was judge me has primary concern was that he had other less senior attorneys who billed at lower rates he also had paralegals that build at lower rates who were involved in the case and  he chose to spend his five hundred and fifty dollars an hour doing things that he did not need to do at that time and again it goes back to what would a private client pay and for a private client to pay five hundred and fifty dollars an hour for one hundred hours of reviewing prior discovery judge may on the case opted to do the lion's share of the work himself in fact the district court actually contradicts itself when it makes its award of costs it awards all costs for all depositions and it states quote defendants motion does not explain and the court cannot discern a manner in which to determine whether any of these deposition costs were incurred unreasonably so the court yesterday i don't mean to cut you off but can you tell me in your own words or in your and granted its analysis that certainly plaintiff and mr harkness would disagree with but it does go through issue by issue application of what it believes were in error now again it dobson ninety percent the defendant had opted to adopt ninety percent blanket reduction which isn't even supported by our expert author david frum mr leonhardt but nevertheless the district court could have easily gone through the analysis that even the defendants did it didn't adopt the defendants and alice's and again we would disagree with the accuracy  analysis but it didn't adopt that sort of topic by topic analysis rather it just said mr terry fees were unreasonable and in fact it says mr terry's billing entrance entries demonstrate that he build an unreasonable amount of time on a case that settled for a small fraction of plaintiffs requested damages a board and that's really the crux of the district court's award and the crux of their of its error because it continues over and over throughout its order which when you read in totality you can only infer that that ninety percent reduction is derived from what the district court believed to be mr vargas only recovery of ten percent of his actual claim damages which again we witnessed her is an error given that ninety nine thousand nine hundred and ninety nine dollars was not the max that the parties contemplated he would receive even under the agreement because he was allowed to seek attorney's fees as the prevailing party on all claims but again this theory it does not account the private attorney theory which even the district court cites in its own order simply ignores the mcginest factors and it ignores the progeny of decisions from this circuit and from the us supreme court where in the court has said a plaintiff in a civil rights action is not entitled to receive a blanket proportion of the damages actually a war it because in many cases the damages are going to be nominal or lower than a private client might expect to achieve for a whole plethora of reasons and that is the purpose way we have