FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL VARGAS,

Plaintiff-Appellant,

v.

AMBER HOWELL; STEVE MCBRIDE;

RICHARD GLOECKNER; JAMES 

GOODSON; RUSSELL TAYLOR; GARY 

PATTERSON; SHAUN BRILEY; JOHN 

OLSON; DEBORAH KNOTTS,

Defendants-Appellees.

No. 18-15513

D.C. No.

2:14-cv-01942-

JCM-CWH

OPINION

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted July 8, 2019

Seattle, Washington

Filed February 5, 2020

Before: Paul J. Watford and Eric D. Miller, Circuit Judges, 

and Roger T. Benitez,* District Judge.

* The Honorable Roger T. Benitez, United States District Judge for 

the Southern District of California, sitting by designation.
2 VARGAS V. HOWELL

Opinion by Judge Miller;

Dissent by Judge Benitez

SUMMARY**

Attorney’s Fees

The panel affirmed in part and reversed in part the 

district court’s award of attorney’s fees following settlement 

in an action brought pursuant to 42 U.S.C. § 1983, and 

remanded.

The district court awarded just 10 percent of the 

attorney’s’ fees claimed by plaintiff, concluding that “the 

vast majority of hours expended in this case were 

unreasonable.” 

The panel held that the district court provided an 

inadequate explanation for such a significant cut. The panel 

stated that the district court appeared to have employed a 

“mechanical” approach, simply assuming that because 

plaintiff settled for 10 percent of what he sought, his lead 

lawyer should recover only 10 percent of the requested fees. 

The panel noted, among other things, that although the 

$99,999 settlement was less than what plaintiff initially 

sought, it was far more than a nuisance settlement. 

Moreover, no ruling from the district court had significantly 

weakened or limited plaintiff’s claims. The panel remanded 

for a recalculation of the number of hours reasonably 

** This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
VARGAS V. HOWELL 3

attributable to plaintiff’s attorney, R. Todd Terry. The panel 

further noted that the record did not suggest that this case 

gave rise to any special non-monetary benefit that would 

warrant consideration in determining an appropriate fee 

award.

The panel held that the district court erred by denying 

fees for work performed by two former attorneys on the basis 

that their new law firm lacked standing to seek fees for work 

the attorneys performed at a different firm. The panel stated 

that 42 U.S.C. § 1988 vests the right to seek attorney’s fees 

in the prevailing party, not the attorney. Plaintiff—not his 

attorneys—moved for attorney’s fees and costs, and plaintiff 

unquestionably had standing to seek fees, including for the 

work of attorneys who represented him for more than nine 

months.

The panel found no abuse of discretion in the district 

court’s reduction of hours and rates of the other attorneys 

that worked on the case. The panel stated that had it been 

called upon to determine a reasonable fee in the first 

instance, the panel’s calculation might have differed from 

that of the district court, but that did not mean that the district 

court abused its discretion.

Dissenting from the majority’s conclusion in Part II that 

the district court’s approach was mechanical and its 

explanation inadequate, Judge Benitez stated that he had no 

difficulty understanding why the district court made the fee 

award it did and he was confident that it was the result of 

reasonable and experienced discretion.
4 VARGAS V. HOWELL

COUNSEL

Kendelee L. Works (argued), Christiansen Law Offices, Las 

Vegas, Nevada, for Plaintiff-Appellant.

Theresa Haar (argued), Senior Deputy Attorney General; 

Steve Shevorski, Head of Complex Litigation; Aaron D. 

Ford, Attorney General; Office of the Attorney General, Las 

Vegas, Nevada; for Defendants-Appellees.

OPINION

MILLER, Circuit Judge:

Daniel Vargas sued various Nevada officials under 

42 U.S.C. § 1983. After reaching a settlement, he sought 

attorney’s fees as the prevailing party. The district court 

awarded just 10 percent of the fees Vargas claimed, and 

Vargas appealed. We affirm in part, but because we 

conclude that the district court provided an inadequate 

explanation for such a significant cut, we reverse in part and 

remand for further proceedings.

I

In 2013, a Nevada state court sentenced Vargas, then 

16 years old, to juvenile detention for car theft. Vargas was 

transferred to the Nevada Youth Training Center in Elko, 

Nevada, where, he alleges, he was beaten, hogtied, and 

deprived of necessary medical care. He then brought this 

action in the District of Nevada against the administrator and 

various employees of the Nevada Division of Child and 

Family Services, as well as numerous officers and 

employees of the Youth Training Center (collectively, the 

“officers”). He asserted claims under section 1983 for 
VARGAS V. HOWELL 5

excessive force and denial of medical care, as well as statelaw tort claims.

After more than two years of litigation, including 

extensive discovery, the parties entered into a settlement 

under which Vargas received $99,999. The settlement 

agreement stated that Vargas had “the right to and will seek 

reasonable attorneys’ fees, costs and interest in this matter as 

the prevailing party pursuant to 42 U.S.C. § 1988,” but that 

the officers “reserve[d] the right to oppose that request.”

Vargas requested over $257,000 in attorney’s fees and 

$39,000 in costs. About 80 percent of the fees were for work 

performed by the Christiansen Law Offices, with the bulk of 

those fees (over $184,000) attributable to R. Todd Terry, one 

of the firm’s senior litigators. The remainder of the fees were 

for two other firms. One was Lasso Injury Law, where Al 

Lasso had been co-counsel for Vargas. The other was 

Gentile Cristalli Miller Armeni Savarese. That firm did not 

work on the case, but two of its attorneys, Paola Armeni and 

Colleen McCarty, had initially been co-counsel for Vargas 

while employed at a different firm. During the course of the 

litigation, their former firm had dissolved and they had 

withdrawn from representing Vargas, but their new firm 

sought fees for the work they had performed.

The district court concluded that “the vast majority of 

hours expended in this case were unreasonable.” The court 

applied an “across-the-board percentage cut” of 90 percent 

to the number of hours claimed by Terry. The court noted 

that Vargas’s supplemental discovery disclosures had 

estimated his damages at over $1 million, but “[t]he case 

ultimately settled for $99,999, less than 10% of the lower 

bound of any of plaintiff’s estimated damages,” and Vargas 

“did not obtain injunctive relief or any other public benefit.” 

The court added that “[i]t was unreasonable for . . . Terry to 
6 VARGAS V. HOWELL

incur over $184,000 in attorney’s fees himself before 

realizing the value of his client’s case was $99,999.” The 

court also reduced the rate claimed by Terry and several of 

his colleagues, and it excluded hours claimed for various 

tasks that it deemed unnecessary.

The district court reduced Lasso’s hours by excluding 

various time entries that it considered excessive or 

duplicative. And it reduced his hourly rate because “neither

the motion nor his affidavit explain his experience or 

qualifications.”

The district court declined to award any fees for 

Armeni’s and McCarty’s work, noting that Armeni had 

withdrawn from the case well before it settled and that the 

settlement “was not due to the efforts of her or her 

associates.” The court concluded that Armeni and McCarty’s 

new firm did not have “standing to seek fees based on a 

contingency fee arrangement negotiated between” Vargas 

and their former firm.

In total, the district court awarded fees of about $26,000, 

plus $16,000 in costs.

II

We begin by considering the 90 percent cut in Terry’s 

hours, a cut that accounted for most of the reduction in the 

overall fee award.

A district court, “in its discretion, may allow the 

prevailing party” in a civil rights action “a reasonable 

attorney’s fee.” 42 U.S.C. § 1988(b). The Supreme Court has 

instructed that “[t]he initial estimate of a reasonable 

attorney’s fee is properly calculated by multiplying the 

number of hours reasonably expended on the litigation times 
VARGAS V. HOWELL 7

a reasonable hourly rate,” an approach commonly known as 

the “lodestar” method. Blum v. Stenson, 465 U.S. 886, 888 

(1984). Determining the number of hours reasonably 

expended requires “considering whether, in light of the 

circumstances, the time could reasonably have been billed to 

a private client.” Moreno v. City of Sacramento, 534 F.3d 

1106, 1111 (9th Cir. 2008). Reasonable hourly rates “are to 

be calculated according to the prevailing market rates in the 

relevant community.” Blum, 465 U.S. at 895.

Although the analysis begins by multiplying a 

reasonable number of hours by a reasonable rate, it does not 

end there. Our case law on the subject has been criticized in 

a number of respects, and we have observed that some 

district courts have found it “inscrutable.” McCown v. City 

of Fontana, 565 F.3d 1097, 1103 (9th Cir. 2009). But no one 

has complained that it unduly restricts the number of factors 

a court may consider. To the contrary, we have identified no 

fewer than 12 factors “to be considered in the balancing 

process.” Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 

(9th Cir. 1975).

Here, the district court gave great weight to “the 

important factor of the ‘results obtained,’” recognizing that 

if the plaintiff “has achieved only partial or limited success, 

the product of hours reasonably expended on the litigation 

as a whole times a reasonable hourly rate may be an 

excessive amount.” Hensley v. Eckerhart, 461 U.S. 424, 

434, 436 (1983). The court concluded that Terry “billed an 

unreasonable amount of time on a case that settled for a small 

fraction of plaintiff’s requested damages award.”

In reviewing that conclusion, we are mindful that our 

role is a limited one: “District court awards of attorney’s fees 

under section 1988 are reviewed for abuse of discretion.” 

Corder v. Gates, 947 F.2d 374, 377 (9th Cir. 1991). That 
8 VARGAS V. HOWELL

deferential standard “is appropriate in view of the district 

court’s superior understanding of the litigation and the 

desirability of avoiding frequent appellate review of what 

essentially are factual matters.” Hensley, 461 U.S. at 437. At 

the same time, however, the district court must give some 

“‘concise but clear’” explanation of “how it came up with 

the amount.” Moreno, 534 F.3d at 1111 (quoting Hensley, 

461 U.S. at 437). And the larger the difference between the 

fee requested and the fee awarded, the “more specific 

articulation of the court’s reasoning is expected.” Id.; see 

also Chaudhry v. City of Los Angeles, 751 F.3d 1096, 1112 

(9th Cir. 2014) (“[A] reduction of 88 percent requires a more 

specific explanation.”); Gates v. Deukmejian, 987 F.2d 

1392, 1399–1400 (9th Cir. 1992).

We conclude that given the size of the cut the district 

court imposed, the court’s explanation was inadequate. We 

do not take issue with the general principle that a district 

court may reduce a fee award if “‘the amount of recovery’ 

was modest relative to the amount [the plaintiff] initially 

sought.” Caudle v. Bristow Optical Co., 224 F.3d 1014, 

1029 n.11 (9th Cir. 2000) (quoting Hensley, 461 U.S. 

at 436). Nor do we question the applicability of that principle 

when a case is resolved through settlement. If a case settles 

for a small fraction of what the plaintiff sought, it will often 

be fair to say that “the degree of success obtained” by 

plaintiff’s counsel was low. Hensley, 461 U.S. at 436; see 

Caudle, 224 F.3d at 1029 n.11.

In some cases, the disparity between the amount sought 

and the amount of a settlement can be so great that the 

plaintiff’s low level of success, by itself, justifies a large 

reduction in the fee award. For example, a substantial 

reduction would be warranted in a case that settled solely for 

its nuisance value. Indeed, it can be appropriate to deny fees 
VARGAS V. HOWELL 9

altogether “[w]here the plaintiff’s success on a legal claim 

can be characterized as purely technical or de minimis.” Tex. 

State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 

782, 792 (1989); see also Fletcher v. City of Fort Wayne, 

162 F.3d 975, 976 (7th Cir. 1998) (“[F]or trivial recoveries 

the only reasonable award of fees is zero.”). In this case, 

although the $99,999 settlement is less than what Vargas 

initially sought, it is far more than a nuisance settlement. Had 

the officers believed that they were settling the case for its 

nuisance value, or that the settlement was so low that Vargas 

had not really prevailed, they could have insisted that the 

agreement say so. Instead, while they retained the right to 

challenge the fee award, they did not question that Vargas 

had genuinely prevailed in the litigation.

A reduction in fees could also be appropriate if a 

settlement were prompted by adverse court rulings that 

doomed the plaintiff’s chances of achieving anything more

than “partial or limited success.” Hensley, 461 U.S. at 436. 

In McCown, for example, we held that a district court abused 

its discretion by awarding more than $215,000 in attorney’s 

fees and costs even though the plaintiff settled for only 

$20,000 after eight of his nine claims were dismissed. 

565 F.3d at 1100, 1103–04. Emphasizing that the amount 

recovered by the plaintiff was a fraction of the amount 

sought, we held that since “McCown’s victory clearly fell 

far short of his goal,” it was unreasonable “to grant his 

attorneys more than a comparable portion of the fees” 

requested. Id. at 1104–05. But here, although the parties had 

conducted discovery, no ruling from the district court had 

significantly weakened or limited Vargas’s claims against 

the officers.

Crucially, even as we reversed the fee award in McCown, 

we cautioned that “the district court need not be so 
10 VARGAS V. HOWELL

mechanical as to divide the amount of fees and costs 

requested by the number of claims.” Id. at 1105. Here, the 

district court appears to have employed just such a 

“mechanical” approach, simply assuming that because 

Vargas settled for 10 percent of what he sought, his lead 

lawyer should recover only 10 percent of the fees requested.

The effect of that approach is to punish Vargas’s 

attorneys for pursuing what might well have been a sensible 

negotiation strategy. A reasonable attorney representing 

Vargas could have made the strategic choice to present an 

initial damages estimate as high as possible. Of course, an 

unrealistically high estimate could make settlement talks 

unproductive, and an attorney must also ensure that any 

estimate presented to the court is “likely [to] have 

evidentiary support after a reasonable opportunity for further 

investigation.” Fed. R. Civ. P. 11(b)(3). But within those 

limits, Vargas’s attorneys could reasonably have decided 

that by offering a high damages estimate, they would retain 

“room to later grant concessions, while still reaching a 

favorable settlement.” Stephen J. Ware, Principles of 

Alternative Dispute Resolution § 3.15, at 313 (3d ed. 2016). 

Had they started from a lower number, the settlement might 

have been lower. Whether or not that is the strategy Vargas’s 

attorneys had in mind, they should not be faulted for 

negotiating a settlement.

The district court’s approach threatens to create perverse 

incentives for lawyers representing civil rights plaintiffs. If 

fees are reduced whenever a case settles for less than the 

initial demand, lawyers will be encouraged to make only 

modest initial demands, limiting the potential recovery for 

their clients. And as the litigation proceeds, they will be 

encouraged to refuse to lower their demands, making 
VARGAS V. HOWELL 11

settlement more difficult and prolonging the litigation. No 

one will be well served by that approach.

The district court also noted that the attorney’s fees 

sought exceeded the amount recovered in the settlement. 

That is a legitimate consideration in evaluating the 

reasonableness of the work performed, but the court appears 

to have treated it as dispositive, stating that “[i]t was

unreasonable for . . . Terry to incur over $184,000 in 

attorney’s fees himself before realizing the value of his 

client’s case was $99,999.” We have held just the opposite: 

“It is not per se unreasonable for attorneys to receive a fee 

award that exceeds the amount recovered by their clients.” 

Gonzalez v. City of Maywood, 729 F.3d 1196, 1209 (9th Cir. 

2013) (emphasis added). That holding reflects the Supreme 

Court’s admonition that there need not be strict 

proportionality between the damages recovered and the fees 

awarded. In City of Riverside v. Rivera, 477 U.S. 561 (1986), 

for example, the Court affirmed an award of more than 

$245,000 in attorney’s fees to a prevailing party who had 

recovered only $33,350 in damages, and it suggested that 

“[a] rule that limits attorney’s fees in civil rights cases to a 

proportion of the damages awarded would seriously 

undermine Congress’ purpose in enacting § 1988.” Id.

at 564–65, 576 (plurality opinion); accord id. at 585 (Powell, 

J., concurring in the judgment); see McCown, 565 F.3d 

at 1104 (“A rule of proportionality is inappropriate.”).

In addition, the district court’s comparison of the 

recovery and the fees overlooked that the recovery was the 

product of a settlement that expressly contemplated an award 

of fees. The court was therefore wrong to suggest that Terry 

should have “realiz[ed] the value of his client’s case was 

$99,999” and spent fewer hours working on it. In fact, the 

value of the settlement was $99,999 plus fees.
12 VARGAS V. HOWELL

Although the district court also stated that Terry’s hours 

“demonstrate[d] an inefficient use of resources” because “a 

senior litigator” should not have performed tasks such as 

“meticulously review[ing] the case file,” that reasoning does 

not support the 90 percent cut. We have held that a court may 

not reduce a fee award based on “speculation as to how other 

firms would have staffed the case” or “whether it would have 

been cheaper to delegate the work to other attorneys.” 

Moreno, 534 F.3d at 1114–15. A conclusory statement about 

inefficiency can justify “no more than a haircut” in a fee 

award; it cannot justify a 90 percent reduction. Id. at 1116; 

see Gonzalez, 729 F.3d at 1203 (“[T]he district court must 

explain why it chose to cut the number of hours or the 

lodestar by the specific percentage it did.”).

Nor is the 90 percent cut supported by our decision in 

Johnson v. MGM Holdings, Inc, 943 F.3d 1239 (9th Cir. 

2019). In that case, which did not involve section 1988, we 

affirmed the district court’s 25 percent reduction of 

counsel’s requested hours because the court explained why 

such a reduction was appropriate and then “conducted a 

percentage-of-recovery analysis as a cross-check.” Id.

at 1242. Significantly, we noted that “the percentage-ofrecovery method is not typically used in civil rights cases.” 

Id. at 1242 n.3 (emphasis added). And we emphasized that 

the percentage-of-recovery computation was not the sole 

basis for a reduction in fees; it merely confirmed the 

reasonableness of a reduction for which the district court 

provided no fewer than six different well-articulated—and 

apparently unrebutted—reasons. Id. at 1243.

To be clear, we do not hold that it would necessarily be 

an abuse of discretion to reduce the fee award in this case 

based on a reasoned finding that Vargas achieved limited 

success, or based on findings that particular tasks performed 
VARGAS V. HOWELL 13

by Terry were unnecessary. We merely reaffirm our prior 

decisions holding that a significant reduction requires a more 

thorough explanation, and we conclude that the court did not 

adequately justify the dramatic cut that it imposed. We 

therefore remand for a recalculation of the number of hours 

reasonably attributable to Terry.

We briefly address one additional argument raised by 

Vargas. The district court determined that Vargas “did not 

obtain injunctive relief or any other public benefit,” and 

Vargas contends that he in fact achieved non-monetary 

success because the policies of the Nevada Youth Training 

Center now prohibit “hobbling.” See Morales v. City of San 

Rafael, 96 F.3d 359, 365 (9th Cir. 1996) (district court must 

consider a prevailing plaintiff’s “nonmonetary success”). In 

developing that argument, Vargas moves to supplement the 

record with various documents produced in discovery but 

not made a part of the district court record. Although we 

have “inherent authority to supplement the record in 

extraordinary cases,” Lowry v. Barnhart, 329 F.3d 1019, 

1024 (9th Cir. 2003), we see no reason to depart from the 

general rule that “documents not filed with the district court 

cannot be made part of the record on appeal.” Rudin v. 

Myles, 781 F.3d 1043, 1057 n.18 (9th Cir. 2014); see Fed. R. 

App. P. 10(a).

Vargas’s argument is unpersuasive in any event. The 

settlement agreement contained no admission of fault by the 

officers, and it did not compel any change in policy. While 

all successful section 1983 actions benefit the public 

generally by helping to encourage compliance with the law, 

the record does not suggest that this case gave rise to any 

special non-monetary benefit that would warrant 

consideration in determining an appropriate fee award.
14 VARGAS V. HOWELL

III

We next consider the district court’s decision to deny 

fees for the work performed by Armeni and McCarty. The 

court reasoned that Armeni and McCarty’s new firm lacked 

standing to seek fees for work those attorneys had performed 

at a different firm. In focusing on the attorneys’ standing, 

however, the district court asked the wrong question. We 

have explained that “[s]ection 1988 vests the right to seek 

attorney’s fees in the prevailing party, not her attorney.” 

Pony v. County of Los Angeles, 433 F.3d 1138, 1142 (9th 

Cir. 2006) (emphasis added). Vargas—not his attorneys—

moved for attorney’s fees and costs, and Vargas 

unquestionably has standing to seek fees, including for the 

work of Armeni and McCarty, who represented him for more 

than nine months.

To be sure, Vargas signed a contingent fee agreement 

with Armeni and McCarty’s previous firm, and it does not 

appear that he has any agreement with their current firm. But 

that does not affect Vargas’s right to seek attorney’s fees as 

a prevailing party. Under section 1988, “an ‘attorney fee’ 

arises when a party uses an attorney, regardless of whether 

the attorney charges the party a fee; and the amount of the 

fee is the reasonable value of the attorney’s services.” 

Centennial Archaeology, Inc. v. AECOM, Inc., 688 F.3d 

673, 679 (10th Cir. 2012); see also Blum, 465 U.S. at 895–

96; Brinn v. Tidewater Transp. Dist. Comm’n, 242 F.3d 227, 

234–35 (4th Cir. 2001). Whether Vargas’s agreement with 

the now-dissolved firm gives Armeni and McCarty any right 

to collect from Vargas is a separate matter. Its resolution 

does not affect Vargas’s statutory entitlement to fees.
VARGAS V. HOWELL 15

IV

Vargas also challenges the district court’s reductions of 

his other attorneys’ hours and rates. “Reasonable people may 

differ as to what number of hours was reasonable to spend 

on this case. But once we are satisfied that the district court 

has considered the appropriate factors for the appropriate 

reasons, our reviewing function is finished.” Cunningham v. 

County of Los Angeles, 879 F.2d 481, 486 (9th Cir. 1988) 

(emphasis omitted). Had we been called upon to determine 

a reasonable fee in the first instance, our calculation might 

have differed from that of the district court, but that does not 

mean that the court abused its discretion.

As to the number of hours, Vargas raises three 

objections. First, the district court excluded hours that 

Vargas’s counsel spent preparing a motion for 

reconsideration of an order dismissing one of Vargas’s 

claims; the court noted that no such motion was filed. Vargas 

argues that his counsel had a duty to explore all potential 

theories that might benefit him, even if they turned out not 

to justify filing a motion. We agree that work spent 

investigating possible avenues of relief is not necessarily 

unreasonable just because those avenues prove to be dead 

ends. And an attorney might reasonably prepare a motion 

only to decide, upon further reflection, that the motion is not 

worth filing. But Vargas did not explain to the district court 

why preparing this particular unfiled motion was reasonable. 

“[T]he district court is in the best position to discern what 

work was unnecessary,” and we see no abuse of discretion 

in the court’s determination that, in these circumstances, the 

time spent on the motion for reconsideration was not well 

spent. Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 

2011).
16 VARGAS V. HOWELL

Second, the district court awarded less than Vargas 

sought for the reply brief in support of his fee request. The 

court emphasized that “only one sentence in the entire brief 

contains a case citation.” We hesitate to endorse a rule that 

would tie a lawyer’s compensation to the number of citations 

contained in a brief. Our experience suggests that even 

without such a rule, few briefs suffer from excessive brevity 

or a paucity of citations. But the court also explained that 

Vargas did not specify “who prepared the reply brief, what 

his or her billing rate was, and how many hours he or she 

spent preparing the brief.” It was Vargas’s burden to “submit 

evidence supporting the hours worked.” Hensley, 461 U.S. 

at 433. The court did not abuse its discretion in determining 

that Vargas did not meet that burden.

Third, the district court reduced Lasso’s hours by 

excluding time entries that it considered excessive or 

duplicative, such as time spent with undisclosed witnesses, 

time spent revising a complaint that had already been filed, 

and time spent attending depositions and mediations in 

which Lasso did not participate. Lasso’s declaration offered 

no explanation for those apparently redundant tasks. The 

district court’s order provided a clear articulation of its 

reasoning for excluding the hours. That is all that is required. 

See Moreno, 534 F.3d at 1111–12.

Vargas’s objections to the district court’s rate reductions 

fare no better. Parties seeking fees have the “burden of 

producing evidence that their requested fees are ‘in line with 

those prevailing in the community for similar services by 

lawyers of reasonably comparable skill, experience and 

reputation.’” Chaudhry, 751 F.3d at 1110 (quoting 

Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th 

Cir. 2008)). In evaluating the requested rate, “judges are 

justified in relying on their own knowledge of customary 
VARGAS V. HOWELL 17

rates and their experience concerning reasonable and proper 

fees.” Ingram, 647 F.3d at 928.

To identify prevailing market rates, the district court 

examined Vargas’s evidence of his attorneys’ rates, skill, 

and experience. It also examined the officers’ evidence, 

which consisted of a declaration by Kirk Lenhard, a Nevada 

attorney. Vargas argues that the district court should have 

disregarded the Lenhard declaration because Lenhard was 

not timely disclosed as a witness. Vargas never raised that 

objection below, so we will not consider it. See Manta v. 

Chertoff, 518 F.3d 1134, 1144 (9th Cir. 2008). Vargas also 

contends that Lenhard identified market rates using cases 

that were not comparable to this one. But all three of 

Lenhard’s cases involved civil litigation, each with multiple 

claims, and two involved both state and federal law. The 

district court is more familiar with the Nevada legal market 

than we are, and it could reasonably have chosen to rely on 

those cases.

Vargas further argues that the district court abused its 

discretion by reducing Lasso’s hourly rate to that of a firstyear associate. The court did so because Vargas did not 

explain Lasso’s experience or qualifications. Given the 

limited information Vargas provided, it was not an abuse of 

discretion to reduce Lasso’s hourly rate.

Finally, Vargas contends that, having already reduced 

Terry’s hours, the district court engaged in impermissible 

double counting when it also reduced his rate. We have 

cautioned courts against using the “simplicity of a given task 

as justification for a reduction” in both an attorney’s hours 

and his or her hourly rate. Moreno, 534 F.3d at 1116. While 

we reverse the district court’s decision to reduce Terry’s 

hours, we note that its reasons for doing so—limited success 

and inefficient use of resources—were different from its 
18 VARGAS V. HOWELL

reasons for reducing Terry’s rate—an assessment of 

prevailing market rates in the community for a similarly 

experienced litigator. That was not double counting.

AFFIRMED in part, REVERSED in part, and 

REMANDED. Motion to supplement DENIED.

The parties shall bear their own costs.

BENITEZ, District Judge, dissenting in part:

I respectfully dissent from the conclusion in Part II that 

the district court’s approach was mechanical and its 

explanation inadequate.

Not too long ago, while reversing a § 1988 award 

because it was not adjusted downward for limited success, 

we empathized with our district court colleagues who “may 

have found the case law on this issue to be inscrutable.” 

McCown v. City of Fontana, 565 F.3d 1097, 1103 (9th Cir. 

2009). Today, we reverse a § 1988 award that was adjusted 

downward because of limited success – not necessarily 

because the adjustment was too large but because a large 

adjustment requires a larger explanation.

“Under Hensley [v. Eckerhart, 461 U.S. 424, 436 

(1983)], of course, ‘the most critical factor in the final 

determination of fee awards is the degree of success 

obtained.’ Where recovery of private damages is the 

purpose of a civil rights litigation, a district court, in fixing 

fees, is obligated to give primary consideration to the amount 

of damages awarded as compared to the amount sought.” 

City of Riverside v. Rivera, 477 U.S. 561, 585 (1986) 

(Powell, J. concurring). “Indeed, ‘the most critical factor’ in 
VARGAS V. HOWELL 19

determining the reasonableness of a fee award ‘is the degree 

of success obtained.’” Farrar v. Hobby, 506 U.S. 103, 114 

(1992) (quoting Hensley, 461 U.S., at 436). And this is what 

the district court did. As the majority recognizes, the district 

court “gave great weight” to the “results obtained” factor. 

Supra at 7.

Attorney’s fees awarded under 42 U.S.C. § 1988 “must 

be adjusted downward where the plaintiff has obtained 

limited success on his pleaded claims, and the result does not 

confer a meaningful public benefit.” McCown, 565 F.3d at 

1103. “A reduced fee award is appropriate if the relief, 

however significant, is limited in comparison to the scope of 

the litigation as a whole.” Hensley, 461 U.S. at 440.

In judging the plaintiff’s success and the reasonableness 

of hours, “a district court should ‘give primary consideration 

to the amount of damages awarded as compared to the 

amount sought.’” Farrar v. Hobby, 506 U.S. 103, 114 

(1992) (quoting Rivera, 477 U.S. at 586). “[T]he district 

court’s calculation of an award need not be done with 

precision.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 

1211 (9th Cir. 1986), opinion amended on denial of reh’g, 

808 F.2d 1373 (9th Cir. 1987). “[W]e do not require ‘an 

elaborately reasoned, calculated, or worded order and a brief 

explanation of how the court arrived at its figures will do 

. . . .’” Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 

1992) (citing Cunningham v. County of Los Angeles,

879 F.2d 481, 485 (9th Cir. 1988)).

Percentages and across-the-board cuts are sometimes 

necessary tools for district courts fashioning reasonable fee 

awards. When percentages are used, district courts do have 

a responsibility to set forth a “concise but clear” explanation 

of their reasons for choosing a given percentage reduction 

and a duty to independently review the applicant’s fee 
20 VARGAS V. HOWELL

request. Gates v. Deukmejian, 987 F.2d 1392, 1400 (9th Cir. 

1992).

That is precisely what the district court did in this case. 

In a ten-page decision, the district court identified the correct 

legal standards, provided an explicit lodestar calculation, 

determined the number of reasonable hours spent and clearly 

explained why the number of hours was reduced. It 

determined a reasonable hourly rate, engaged in a 

meaningful comparison of damages sought to damages 

awarded, noted the lack of public benefit achieved, and 

provided a concise and clear explanation of its reasons for 

the fees awarded.

In this case, the district court began with the most 

important factor, i.e., the limited degree of success. It noted 

the plaintiff sought general damages between $1,136,453 

and $1,541,833 plus medical expenses of $119,651, but 

settled the case for only $99,999. According to Farrar and 

Hensley, the district court should be able to stop there. 

“Having considered the amount and nature of damages 

awarded, the court may lawfully award low fees or no fees 

without reciting the 12 factors bearing on reasonableness.” 

Farrar, 506 U.S., at 115 (citing Hensley, 461 U.S., at 430, 

n. 3). Nonetheless, the district court went farther. It reduced 

the number of reasonable hours, calculated a lodestar 

amount, and recited the Kerr factors. See Kerr v. Screen 

Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975) (adopting 

12 factors for consideration in attorney’s fees cases). 

Notably, our Kerr decision arose from a case where the 

district court awarded less than 50% of fees requested with 

a single sentence explanation: “‘The court believes that 

amount to be reasonable under all the circumstances of this 

case.’” Id. at 69. In this appeal, the district court’s 
VARGAS V. HOWELL 21

explanation was considerably longer – spanning most of its 

ten-page decision.

The district court addressed Kerr factor 1 without saying 

it directly. (Factor 1 is the “time and labor required.”) The 

district court said that plaintiff’s counsel spent unreasonable 

amounts of time on drafting motions, reviewing discovery, 

and getting up to speed on the case. Regarding Kerr factor 

3, which is the skill requisite to perform the legal service 

properly, the district court pointed out that plaintiff’s senior 

attorney spent an inordinate amount of time on tasks that 

could have been done by attorneys of lesser skill or 

paralegals. The district court noted a law clerk drafted three 

deposition notices in half an hour, in contrast to when the 

senior attorney drafted deposition notices, it took him 

2.10 hours to draft four notices. Additionally, the district 

court found that the itemized billings contained “numerous 

redundancies,” and fees billed for a motion for 

reconsideration that was never filed. Of course, the district 

court addressed the subject of Kerr factor 8, i.e., the amount 

sought and the case results. The district court concluded that 

it was unreasonable for the senior attorney to bill $184,000 

in fees before realizing that the value of his client’s case was 

$99,999. The district court also explained how it arrived at 

the $450 hourly rate for attorney Terry, relying on a 

declaration and other local cases (which is Kerr factor 9). In 

reducing the award for a reply brief, the district court pointed 

out not only that the document offered only one case citation, 

but that the author was not named, nor the author’s billing 

rate, nor how many hours were spent preparing the brief. 

Kerr factor 2, the novelty and difficulty of the question 

involved, and Kerr factor 12, awards in similar cases, were 

implicitly considered by the district court when it explained 

that spending 535 hours to win a purely monetary judgment 

of $99,999 would constitute an impermissible windfall to 
22 VARGAS V. HOWELL

plaintiff’s counsel and that reducing the award will not deter 

qualified attorneys from pursuing other civil rights litigation.

Some of the remaining Kerr factors were not addressed 

by plaintiff or were lightly touched upon. For example, 

regarding Kerr factor 4, in the fee motion counsel said that 

his law firm could have spent the 330 hours on other 

litigation but offered no specifics. For Kerr factor 6, counsel 

said the fee was contingent, but did not elaborate. Counsel 

said that time limitations imposed by the client or 

circumstances were not a factor (Kerr factor 7). The district 

court did not spell out its thoughts on Kerr factor 10: the 

undesirability of the case. But with 25 years of experience 

in private practice and 20 more years on state and federal 

benches, it is a pretty good bet that the district judge had 

accurately considered the factor.

In other words, the district court provided the required 

concise but clear explanation for its decision, evincing the 

district correctly exercised its discretion and that the award 

was reasonable. Johnson v. MGM Holdings, Inc., 943 F.3d 

1239, 1242 (9th Cir. 2019) (“The district court provided a 

clear and concise explanation for its lodestar calculation and 

its reasonableness cross-check, enabling us to determine that 

the district court’s award was reasonable, based on the 

record before it – our case law requires nothing more.”) 

(citing McCown, 565 F.3d at 1102). Johnson recently 

approved a 25% across the board cut to a lodestar calculation 

– ultimately approving an $184,000 fee rather than the 

$350,000 fee plaintiff requested upon settling a class action.

As was the case in Johnson, in this case I have no 

difficulty understanding why the district court made the fee 

award it did and I am confident that it was the result of 

reasonable and experienced discretion. Yet, in view of our 

inscrutable jurisprudence, it is understandable that the 
VARGAS V. HOWELL 23

majority would try to clarify where the district court fell 

short. I do not agree, however, that it has succeeded. Our 

opinion today does nothing to de-mystify the “inscrutability” 

of our law on the subject, and it does nothing to clarify for 

trial court judges what it is that they must do. Falling short 

of clarifying our jurisprudence, the majority reverses, 

requiring a “more thorough explanation” from the district 

court without setting forth how much more thorough or 

when an opinion will be long enough to be deemed adequate.

Ultimately, our opinion today merely increases the writing 

burden on trial court judges.