                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            NOV 25 2013
                     UNITED STATES COURT OF APPEALS                     MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JESSICA A. MARQUEZ,                              No. 12-35621

              Plaintiff - Appellant,             D.C. No. 2:09-cv-01254-SU

  v.
                                                 MEMORANDUM *
HARPER SCHOOL DISTRICT NO. 66;
et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                              for the District of Oregon
                    Patricia Sullivan, Magistrate Judge, Presiding

                      Argued and Submitted November 7, 2013
                                 Portland, Oregon

Before: M. SMITH and HURWITZ, Circuit Judges, and PRO, Senior District
Judge.**

       Plaintiff-Appellant Jessica Marquez appeals the district court’s denial of her

supplemental motion for attorney’s fees. Marquez also appeals the district court’s


       *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

       **
            The Honorable Philip M. Pro, United States District Judge for the
District of Nevada, sitting by designation.
calculation of the attorney’s fee award based on her original motion for attorney’s

fees. We review for an abuse of discretion. Mendez v. Cnty. of San Bernardino,

540 F.3d 1109, 1124 (9th Cir. 2008). We affirm in part, reverse in part, and

remand.

       The district court did not abuse its discretion in denying the supplemental

fee motion because the Offer of Judgment unambiguously limited fees to those

accrued through the date of the Offer. Guerrero v. Cummings, 70 F.3d 1111,

1113–14 (9th Cir. 1995). As to the original fee motion, the district court did not

abuse its discretion with respect to deductions for block billing because the district

court did not make across the board cuts to all fees on this basis. See Welch v.

Metro. Life Ins. Co., 480 F.3d 942, 948 (9th Cir. 2007); Fischer v. SJB-P.D. Inc.,

214 F.3d 1115, 1118, 1121 (9th Cir. 2000). Rather, the district court was within its

discretion when it deleted two block billed entries in their entirety and deleted

hours for clerical tasks and vague time entries in the billing records. The district

court did not abuse its discretion by awarding rates lower than the highest

comparable billing rates. The district court awarded rates above the average billing

rate for attorneys of similar experience. Finally, the district court did not abuse its

discretion by failing to make an adjustment for the protracted nature of the

post-offer litigation.


                                           2
      However, the district court abused its discretion in setting the reasonable

hourly rate and reasonable hours expended because it double counted the case’s

lack of complexity combined with counsels’ expertise to reduce both the rate and

the hours. See Moreno v. City of Sacramento, 534 F.3d 1106, 1115-16 (9th Cir.

2008). The district court failed to adequately explain why it did not apply any

enhancement to the hourly rate for inflation or a delay in payment. Christensen v.

Stevedoring Servs. of Am., 557 F.3d 1049, 1055–56 (9th Cir. 2009). The district

court’s lack of explanation, combined with its reference to the requested fee rates

as “enhanced,” suggest the district court may be “holding the line” by using the

2007 Oregon State Bar Survey to artificially limit rates to 2006 levels. Moreno,

534 F.3d at 1115; see also Davis v. Wal-Mart Stores, Inc., No.

3:09-CV-01488-MO, 2012 WL 1424105, at *2-3 (D. Or. Apr. 23, 2012)

(unpublished) (calculating a fee award using the 2007 Oregon State Bar Survey as

a baseline, but adjusting for inflation for each year of work performed beyond

2006 and explaining the basis for those adjustments).

      Further, the district court did not explain why it applied thirty and fifty

percent reductions to the hours expended briefing the summary judgment motions

and researching the complaint. The district court may impose a “small reduction,

no greater than 10 percent—a ‘haircut’—based on its exercise of discretion and


                                           3
without a more specific explanation.” Moreno, 534 F.3d at 1112. “In all other

cases, however, the district court must explain why it chose to cut the number of

hours or the lodestar by the specific percentage it did.” Gonzalez v. City of

Maywood, 729 F.3d 1196, 1203 (9th Cir. 2013). Stating that the case is not novel

or complex does not suffice to explain the “magnitude of the reductions.” Costa v.

Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136-37 (9th Cir. 2012). We

therefore affirm in part, reverse in part, and remand for further proceedings

consistent with this decision.

Each party shall bear its own costs.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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