                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 13 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MARIA BARRIOS,                                    No. 09-55603

              Plaintiff - Appellant,              D.C. No. 2:07-cv-03500-R-FMO

  v.
                                                  MEMORANDUM *
DIAMOND CONTRACT SERVICES,
INC.,

              Defendant - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                      Argued and Submitted December 6, 2011
                               Pasadena, California

Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.

       Appellant Maria Barrios was a prevailing plaintiff in an action brought under

Title VII and California’s Fair Employment and Housing Act. Barrios appeals the

denial of statutory attorney’s fees and partial denial of costs. We have jurisdiction




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
pursuant to 28 U.S.C. § 1291. We reverse and remand to a new district court judge

for a proper fee calculation.

      “We review the award or denial of attorney’s fees for abuse of

discretion . . . .” Coal. for Clean Air v. S. Cal. Edison Co., 971 F.2d 219, 229 (9th

Cir. 1992). “We will reverse if the district court misperceives or misapplies the

law governing fee awards.” Id.

      1.     In Title VII cases, a prevailing plaintiff “ordinarily is to be awarded

attorney’s fees in all but special circumstances.” Christiansburg Garment Co. v.

EEOC, 434 U.S. 412, 417 (1978). The district court abused its discretion when it

determined that special circumstances justified a complete denial of attorney’s

fees. The contingency fee agreement between Barrios and her counsel was not a

special circumstance. Attorney’s fees under Title VII belong to the party, and Title

VII’s fee-shifting provision does not “regulate what plaintiffs may or may not

promise to pay their attorneys if they lose or if they win.” Venegas v. Mitchell, 495

U.S. 82, 86–87 (1990).1 The “ultimate disposition” of the fee award is “dependent

on the contract between the lawyer and the client.” Gilbrook v. City of

Westminster, 177 F.3d 839, 875 (9th Cir. 1999); see also Los Angeles Cnty. Bar


      1
        Cases interpreting 42 U.S.C. § 1988 also apply to Title VII’s fee-shifting
provision. Davis v. City & Cnty. of San Francisco, 976 F.2d 1536, 1541 n.1 (9th
Cir. 1992).

                                     Page 2 of 4
Assoc., Prof’l Resp. & Ethics Comm., Op. 523 (2009) (concluding that a similar

fee arrangement did not violate the California Rules of Professional Conduct). The

district court’s other concerns — including whether the hours billed were

reasonable, whether counsel’s billing records were adequate, and whether Barrios

achieved limited success on the merits — should have been subsumed in a lodestar

calculation. Hensley v. Eckerhart, 461 U.S. 424, 433–35 (1983); Mendez v. Cnty.

of San Bernardino, 540 F.3d 1109, 1128–29 (9th Cir. 2008); Morales v. City of

San Rafael, 96 F.3d 359, 363–65 (9th Cir. 1996); Cunningham v. Cnty. of Los

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

      2.     The district court also misapplied the law when it determined that

Barrios was not entitled to any fees or costs after Diamond Contract Services made

a Rule 68 offer of judgment. The district court should have compared the offer of

judgment to the jury verdict plus Barrios’s reasonable attorney’s fees and costs

incurred at the time the Rule 68 offer was made. Corder v. Gates, 947 F.2d 374,

380 n.9 (9th Cir. 1991).

      3.     We instruct the Chief Judge for the Central District of California to

reassign this case to a different district judge on remand. Our supervisory powers

under 28 U.S.C. § 2106 permit us to reassign cases on remand when “unusual

circumstances” are present. United Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d


                                    Page 3 of 4
1102, 1118 (9th Cir. 2001). Reassignment is warranted here because the judge

may “have substantial difficulty in putting out of his . . . mind previously expressed

views or findings determined to be erroneous,” making “reassignment . . .

advisable to preserve the appearance of justice.” Id. (quoting United States v.

Sears, Roebuck & Co., 785 F.2d 777, 780 (9th Cir. 1986)). Given the limited

scope of an attorney’s fees determination, any minimal potential for waste or

duplication is outweighed by the need to preserve the appearance of fairness. Id. at

1118–19.

      REVERSED and REMANDED for a proper fee calculation before a

different district court judge.




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