                               NOT FOR PUBLICATION

                       UNITED STATES COURT OF APPEALS                                 FILED
                                FOR THE NINTH CIRCUIT                                  MAR 20 2013

                                                                                  MOLLY C. DWYER, CLERK
                                                                                    U .S. C O U R T OF APPE ALS

 DOUGLAS S. YIP,                                        No. 11-56008

                Plaintiff - Appellant,                  D.C. No. 09-cv-05683-RGK-JEM

   v.

 ROBERT W. LITTLE, as Administrator of                  MEMORANDUM *
 the Robert W. Little Insurance Agency,
 Inc. Retirement Plan Three,

                Defendant - Appellee.


                       Appeal from the United States District Court
                          for the Central District of California
                       R. Gary Klausner, District Judge, Presiding

                        Argued and Submitted February 13, 2013
                                 Pasadena, California

Before: BERZON and WATFORD, Circuit Judges, and CARR, Senior District
Judge.**




         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
               The Honorable James G. Carr, Senior District Judge for the U.S. District Court
for the Northern District of Ohio, sitting by designation.
                                               -1-
      Douglas Yip (“Yip”) appeals his attorney’s fee award. According to Yip, the

district court abused its discretion when it: 1) reduced his requested hourly rate

from $350 to $275; 2) reduced his billed hours from 89.8 to 45; and 3) failed to

award $826.76 in case-related expenses.

      We agree that the district court abused its discretion in all three respects,

because it failed to explain sufficiently its reasoning.

      1. With regard to the appropriate hourly rate for the award of reasonable

attorney’s fees under 29 U.S.C. § 1132(g), the relevant metric is the market rate

charged by similarly competent attorneys for representation of comparable

complexity. Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 946 (9th Cir.

2007). The attorney requesting fees bears the burden of demonstrating the

reasonable market rate. Id. at 947. An attorney may satisfy this burden by

providing: 1) rate determinations in other cases; or 2) affidavits of other attorneys

stating prevailing fees in the legal community. Id. (citation omitted). Absent

objection, this evidence should be presumed to provide the reasonable market rate.

Id.

      A district court may award fees at a lower rate only if it determines an

attorney “performed below the level of expertise” used to establish the rate, id. at

948, or relies on other evidence, including its own familiarity with the legal



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market, see Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011), that

undermines the reasonableness of the rate requested.

       A district court cannot merely list factors. It must apply the factors to the

facts of the case at issue and, crucially, “articulate with sufficient clarity the

manner in which it makes its determination of a reasonable hourly rate and the

number of hours which should reasonably be compensated.” See Chalmers v. City

of L.A., 796 F.2d 1205, 1211 (9th Cir. 1986). Asserting, without more, that legal

issues are “straightforward” or “noncomplex” is insufficient to justify a reduction

in the market rate. Id.

       Yip presented evidence that the prevailing market rate was $550 per hour.

See Minute Order Granting Plaintiff's Motion for Fees and Costs, Whalen v.

Standard Ins. Co., No. 08cv0878, (C.D. Cal. Feb. 4, 2010) ECF No. 68 (awarding

$550 per hour to similarly qualified Kantor & Kantor attorneys in the Los Angeles

area). The district court did not dispute: 1) the applicable market rate; or 2)

counsel’s experience and expertise. Moreover, the district court failed to discuss:

1) the unusually protracted litigation; and 2) the numerous technical issues raised

by the belated disclosure of a plan amendment. The district court also failed to

mention that counsel was already charging a fee $100 – $150 below market rate.

       And although the district court stated it was basing its decision on the



                                            -3-
simplicity of the case, it failed to state how the numerous issues for which Yip

requested declaratory relief could fairly be categorized as such.

      In short, a reduction in the hourly rate–especially one of this extent–requires

substantially more justification.

      2. With respect to the number of hours billed, the district court abused its

discretion in reducing by nearly 50% Yip’s claimed hours.

      “The district court may exclude from the fee request any hours that are

‘excessive, redundant, or otherwise unnecessary.’” Welch, 480 F.3d at 946.

However, a district court cannot impose an across- the- board percentage reduction

or, without explanation, reduce hours based on a cursory examination of the

record. Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008).

      “[T]he district court can impose a small reduction, no greater than 10

percent—a ‘haircut’—based on its exercise of discretion and without a more

specific explanation.” Id. at 1112. If a district court seeks to reduce an attorney’s

claimed hours by a greater amount, it must “explain the necessity or degree of the

cut.” Id. (stating that 50% reduction in requested hours was draconian and could

not be upheld based upon opaque explanation that fees were “excessive”). Before

doing anything other than the trimming of a “haircut,” a court must, at the very

least, point to specific tasks and/or time expended and explain why the tasks were



                                           -4-
unnecessary or the expended time excessive.

      In this case, the district court failed to identify any specific billing issues.

The court’s cursory explanation that the “nature and complexity” of the case

warranted the reduction was insufficient given the magnitude of its cut.

      3. Lastly, the district court abused its discretion in denying case-related

expenses not otherwise recoverable as costs under 28 U.S.C. § 1920 without

offering any explanation.

      Costs are a category of expenses distinct from attorney’s fees under 29

U.S.C. § 1132(g)(1). See also Trs. of Constr. Indus. & Laborers Health & Welfare

Trust v. Redland Ins. Co., 460 F. 3d 1253, 1258 (9th Cir. 2006). However, if it is

“the prevailing practice in the local [legal] community” to separately bill

reasonable litigation expenses to the client, lawyers may recover those expenses as

“attorney’s fees.” Id. at 1259.

      Yip provided evidence that it is the common practice in the relevant legal

community to bill separately for copying, faxing, transcripts, and parking costs. As

these case-related expenses appear reasonable, the district court abused its

discretion in denying their recovery as “attorney’s fees” without explanation.

      VACATED and REMANDED for redetermination of reasonable attorney’s

fees and costs. Absent explanation sufficient to overcome the presumed



                                           -5-
reasonableness of Yip’s request, the district court should: 1) award fees for the

89.8 hours at the hourly rate requested, and 2) award $826.76 in case-related

expenses. An appropriate request for fees on appeal will be entertained and

referred to the Appellate Commissioner for determination of the appropriate fee

amount.




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