                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                            No. 11-1399


REACHING HEARTS INTERNATIONAL, INCORPORATED,

                Plaintiff − Appellee,

           v.

PRINCE GEORGE'S COUNTY; COUNTY COUNCIL OF PRINCE GEORGE'S
COUNTY, Sitting As The District Council,

                Defendants − Appellants.



Appeal from the United States District Court for the District of
Maryland, at Greenbelt.      Roger W. Titus, District Judge.
(8:05−cv−01688−RWT)


Argued:   March 21, 2012                   Decided:   April 25, 2012


Before MOTZ, SHEDD, and AGEE, Circuit Judges.


Affirmed and remanded by unpublished per curiam opinion.


ARGUED: William Walter Wilkins, NEXSEN PRUET, LLC, Greenville,
South Carolina, for Appellants.       Ward Baldwin Coe, III,
GALLAGHER EVELIUS & JONES, LLP, Baltimore, Maryland, for
Appellee.   ON BRIEF: Tonia Y. Belton-Gofreed, OFFICE OF LAW,
Upper Marlboro, Maryland; Kirsten E. Small, NEXSEN PRUET, LLC,
Greenville, South Carolina, for Appellants.  David W. Kinkopf,
Brian T. Tucker, GALLAGHER EVELIUS & JONES, LLP, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

       This is the second time this case has been before us. In

the    first    appeal,        we    affirmed         a    jury     verdict    in   favor     of

Reaching Hearts International (“RHI”), a Seventh Day Adventist

congregation that sought to build a church on its land in Prince

George’s       County,      Maryland. 1        In    this     appeal,     Prince       George’s

County and its County Council (collectively “the County”) raise

a     number    of    challenges          to     the      district     court’s      award     of

attorneys’ fees and expenses to RHI. For the reasons discussed

below, we affirm the order of the district court.



                                                I.

       After    the    appeal        by    the       County    had    concluded        and    our

mandate    issued,       RHI    filed      a     motion       for    attorneys’     fees      and

expenses       on    July      30,    2010. 2        The    motion,      supported       by    a

memorandum,         affidavit,       and       verified       exhibits,       sought    almost

$725,000 in fees (including fees for attorneys and other non-

       1
       The jury awarded $3,714,822.36, based on the County’s
violation of RHI’s rights under the Equal Protection Clause and
Religious Land Use and Institutionalized Persons Act (“RLUIPA”).
For a fuller description of the case and its facts, see Reaching
Hearts Int’l, Inc. v. Prince George’s County, 368 F. App’x 370
(4th Cir. 2010) (unpublished).
       2
       Although RHI had filed a motion for attorneys’ fees and
expenses after trial, the July 30, 2010 motion was a renewed
motion that incorporated a request for additional fees for work
associated with the first appeal.



                                                 2
attorney timekeepers), based on 2,635 hours of work through the

date it          was    filed.   RHI      also   sought       approximately       $40,000    in

expenses.         The    rates     used    in    the       motion    were   the     historical

hourly rates customarily charged to other clients by the various

timekeepers at the time that the services were rendered. 3 The

rates for the attorneys ranged from $200 to $470 per hour.

        The historical rates requested in the motion for fees were

different         (and     generally        higher)         than    the     rates    RHI    had

previously negotiated to pay its attorneys. Specifically, at the

outset of the litigation, RHI and its attorneys had agreed that

RHI would make payments as the litigation progressed pursuant to

a blended, discounted fee structure, with an hourly rate of $250

for all attorneys and $130 for all paralegals. This “reduced”

rate was agreed upon “out of consideration of [RHI’s] ability to

pay and its charitable mission, with the express understanding

that [RHI’s attorneys] would seek full and proper compensation

for fees and expenses from the County should RHI prevail.” (J.A.

206.)       At    the    time    of    RHI’s     renewed       fee    petition,       RHI   had

previously         paid    to    its    attorneys          $560,975.16,     although       RHI’s

payments         were     “often      [made]     in    a    less    than    timely     fashion



        3
       Many of those rates increased during the course of the
litigation, which began with the filing of the Complaint in June
2005.



                                                 3
because of [RHI’s] limited resources.” (Br. of Appellees at 8

(citing Affidavit of Ward B. Coe, III, at J.A. 206).)

      At a hearing on the motion for fees and expenses held on

March 14, 2011, the district court heard argument from counsel

and   then    determined        the   lodestar    amount,   or   the   “reasonable

hourly     rate     multiplied    by   hours     reasonably   expended.”    United

States ex rel. Vuyyuru v. Jadhav, 555 F.3d 337, 356 (4th Cir.

2009). In doing so, the court expressly considered the twelve

factors pertinent to the lodestar analysis:

         (1) the time and labor expended; (2) the
         novelty and difficulty of the questions
         raised; (3) the skill required to properly
         perform the legal services rendered; (4) the
         attorney's opportunity costs in pressing the
         instant litigation; (5) the customary fee
         for    like     work;   (6)    the    attorney's
         expectations      at   the   outset     of   the
         litigation; (7) the time limitations imposed
         by the client or circumstances; (8) the
         amount   in    controversy   and   the   results
         obtained; (9) the experience, reputation and
         ability     of    the   attorney;     (10)   the
         undesirability of the case within the legal
         community in which the suit arose; (11) the
         nature   and    length   of   the   professional
         relationship between attorney and client;
         and (12) attorneys' fees awards in similar
         cases.
See Jadhav, 555 F.3d at 356-57 (citations omitted); see J.A.

182-191.

      As     part    of   its   analysis   of     these   various   factors,   the

district court recognized that this was the first RLUIPA case in

the country where money damages had been awarded by a jury. As


                                           4
described by the district court, this “was a very novel case

with extremely difficult questions raised.” (J.A. 185.) It was

“a needle in the haystack case” that “required a lot of skill on

the part of the plaintiff’s lawyers, not just because of the

novelty    and   difficulty    .   .   .       but   because      of   the   extremely

tenacious defense raised by Prince George’s County in defending

this case.” (J.A. 185, 188.) As to the “most critical factor[,]

. . . the degree of success obtained,” see Hensley v. Eckerhart,

461 U.S. 424, 436 (1983), the district court stated that this

case “can only be described as a home run in a very adverse

ballpark with your adversary being the New York Yankees, this

was not an easy case.” (J.A. 190-91.)

     The district court ultimately concluded that the hours set

forth in the fee petition were reasonably expended and that the

rates sought were reasonable. Indeed, at different points in the

hearing,   the   district     court    referred       to    the    rates     sought   as

“very reasonable,” “extremely reasonable,” and “very fair and

reasonable,”     and   further     concluded         that   it     was     “more   than

satisfied that the rates being sought are those predominantly

charged by attorneys practicing in this court.” (J.A. 188, 193,

199.)

     The district court also considered RHI’s request for an

enhancement for superior results, but concluded that under the



                                           5
Supreme Court’s decision in Perdue v. Kenny A., 130 S. Ct. 1662

(2010), a fee enhancement would not be awarded.

      RHI had also asked for additional compensation, over and

above the historical rates charged. This additional amount was

to account for the “effect of delay in payment on the value of

the fee,” an adjustment we have explained is required in order

to render the fee award “fully compensatory.” Daly v. Hill, 790

F.2d 1071, 1081 (4th Cir. 1986); see Ohio River Valley Envtl.

Coal., Inc. v. Green Valley Coal Co., 511 F.3d 407, 419 (4th

Cir. 2007) (hereinafter “Ohio River”) (“a fee award must account

for   the     effect    of     delay    in    payment”).       The    district      court

concluded      that    use    of    RHI’s    otherwise      reasonable       historical

rates failed to fully compensate it for the lost time value of

money.   Although       the    district      court      recognized    that     it   could

calculate interest on each monthly fee paid by RHI and owed to

RHI’s attorneys, the court stated that it “would almost be a

death defying mathematical calculation.” (J.A. 194.) Thus, the

district      court    instead      accounted     for    the   lost   time     value   of

money    by    applying       the   current      hourly    billing     rates     of    the

timekeepers (as opposed to the historical rates) to the number

of hours awarded. This resulted in a total fee award, including

time spent at the district court fee hearing and recalculating

the fees using current rates, of $838,722.00. (J.A. 196, 202.)



                                             6
       Finally,      the    district      court      awarded         the   full     amount     of

expenses sought by RHI, finding them to be “very reasonable” and

“well      documented.”      (J.A.      193.)      The    award       ultimately         included

expenses in the total amount of $40,784.40. 4 (J.A. 202.)

       The     County      timely       appealed         and    we     have     jurisdiction

pursuant to 28 U.S.C. § 1291.



                                            II.

       We review “[t]he reasonableness of the amount of a district

court’s fee award . . . for abuse of discretion,” and questions

of     law     arising      in    the     course         of     the     determination          de

novo. Johannssen v. Dist. No. 1-Pac. Coast Dist., MEBA Pension

Plan, 292 F.3d 159, 178 (4th Cir. 2002), abrogated on other

grounds      by    Metro.     Life      Ins.       Co.    v.     Glenn,       554    U.S.     105

(2008); Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243

(4th    Cir.      2009)    (court    reviews       award       of    attorneys’      fees     and

expenses for an abuse of discretion). While that discretion is

“not unlimited” and “[i]t is essential that the judge provide a

reasonably        specific       explanation        for        all    aspects       of    a   fee

       4
       The Clerk of the District Court had previously awarded
costs in the amount of $7,348.23 based on a bill of costs RHI
submitted shortly after trial. To avoid duplication when
entering its award of expenses upon RHI’s renewed motion, the
district court deducted that amount from the total amount of
expenses awarded ($40,784.40), resulting in an order awarding
$33,400.17. (J.A. 196, 202, 554.)



                                               7
determination,”     Perdue,     130    S.    Ct.     at    1676,      our    review    is

nonetheless    “sharply      circumscribed.”        Jadhav,      555    F.3d    at    356

(citation omitted). “[B]ecause a district court has close and

intimate    knowledge   of    the   efforts        expended     and    the    value   of

services rendered, the fee award must not be overturned unless

it is clearly wrong.” Id. (citation omitted).

     On appeal, the County challenges various aspects of the

district court’s determination of the fee award. The County’s

arguments    fall   into   three      categories:         (1)   challenges      to    the

hourly rates used in calculating the fee; (2) challenges to the

number of hours deemed by the district court to be reasonable;

and (3) challenges to specific items of expenses as improperly

documented. We address each argument in turn.



                                        A.

     The    County’s    challenge      to    the    hourly      rate    used    by    the

district court is two-fold. First, it contends that the hourly

rates sought by RHI, i.e., the historical billing rates, were

far above the prevailing market rate for civil rights litigation

in the District of Maryland, and that there was insufficient

support in the record for the rates utilized by the district

court. Second, it challenges the district court’s use of current

market rates to account for a delay in payment.



                                         8
       As to the first part of its challenge to rates, the County

argues that the rates charged by the attorneys and paralegals to

private clients are not the prevailing market rate for the type

of     work    involved      here   and      that    a   better      indicator     of     a

“reasonable rate” would be either the amount RHI agreed to pay

its attorneys (the blended hourly rate of $250 for attorneys and

$130 for paralegals) or the rates set forth in Appendix B to the

Local       Rules   for   the   United       States      District     Court   for       the

District       of   Maryland,       entitled        “Rules     and    Guidelines        for

Determining Attorneys’ Fees in Certain Cases.” 5

       As     noted,   our    review    is    limited     to    a    determination       of

whether the district court abused its discretion, and we find no

abuse of discretion in its determination that the rates sought

were       reasonable.    The   court     expressly       considered,     and    relied

upon, affidavits from Messrs. Rosenberg and Maloney, experienced

trial attorneys who were known to the district judge and who


       5
       The rates in Appendix B vary depending on the number of
years since an attorney has been admitted to the bar. For
example, the suggested range of hourly rates for a lawyer
admitted to the bar for less than five years is $150-190. For a
lawyer admitted for fifteen years or more, the rate would be
$275-$400. The section of Appendix B setting forth the rates
also makes clear that “[t]he factors established by case law
obviously govern over [these rates]” and that “[o]ne factor that
might support an adjustment to the applicable range is an
increase in the cost of legal services since the adoption of the
guidelines.” Id. at n.6. According to counsel’s representations
to this Court, the rates were last updated in January 2008.



                                             9
both appeared regularly in federal court in Maryland in complex

civil    litigation   matters   and    other   cases.   Those   affidavits

stated that the rates sought were reasonable. 6 The district judge

also relied on his own knowledge of prevailing market rates in

the relevant market. In particular, he explained that he had

been responsible for billing at the law firm where he practiced

prior to his appointment to the bench in 2003 and that he knew

the rates charged by attorneys at that local firm for all types




     6
       The County emphasized, both in its brief and at argument,
that the affidavits were insufficient to establish that the
rates sought were reasonable because they did not contain
“satisfactory ‘specific evidence of the prevailing market rates
in the relevant community’ for the type of work performed.” (Br.
at 11-12 (quoting Plyler v. Evatt, 902 F.2d 273, 277 (4th Cir.
1990)) (citation omitted).) In particular, it contends the
affidavits of Messrs. Rosenberg and Maloney were insufficient
because they did not state that the claimed rates were
consistent with the market rate for the specific type of
litigation involved, here, “civil rights litigation.” (Br. at
12-14.) We disagree.
     While the affidavits may not have used the precise language
suggested in Plyler and while they could have been more
specific, there are significant distinctions between “civil
rights cases” in general (such as Section 1983 cases brought by
prisoners or against the police by arrestees) and a RLUIPA case
like this one, which was much more involved and complicated than
a typical “civil rights” case and more akin to complex civil
litigation. As noted, there was significant novelty to this
litigation because so few cases under RLUIPA for money damages
in this context had occurred at that time. Thus, we conclude the
district court did not abuse its discretion in determining that
the affidavits were sufficient to show that the rates were
reasonable for the type of work performed.



                                      10
of    litigation     up     through    that    time       in    the    relevant       market. 7

Additionally—and          significantly—there            was    a    lack     of   comparable

rates for RLUIPA work in Maryland and even nationwide, in view

of its novelty at the time, and the fact that no jury award of

damages had ever been made prior to this case. (J.A. 172, 184-85

(district      court      noting      “this    was       a     very    novel       case     with

extremely difficult questions raised” and that there is not a

RLUIPA bar that the court could look to in order to determine

rates).) In short, we find no error or abuse of discretion in

the    district     court’s     determination            that    the    historical         rates

requested were reasonable.

       The   County’s       second    challenge          to    the    rates    used    by   the

district     court     is    that    the    use     of    March      2011     hourly      rates,

rather       than    historical            rates,        constituted          an      improper

enhancement and was not warranted by any delay in payment. The

County relies heavily on the fact that RHI paid its attorneys

the agreed-upon reduced rate throughout the litigation, and thus

there was no delay in payment to the attorneys as to most of the


       7
       In fact, the district court noted that the historical fees
now requested were less than what he would have termed
comparable rates when he left private practice seven years
earlier. (J.A. 187 (“Mr. Coe’s rates now are less than my rate
was [when I arrived on the bench]”); id. at 199 (“all these
rates are very reasonable. Very reasonable. I mean, my rate was
north of these rates seven years ago. And rates at my old law
firm have been going up since then, not down.”).)



                                              11
fees earned. This second challenge to the rates is a slightly

more involved issue.

       As an initial matter, we first note that the use of the

current rates was not an “enhancement” of the fee award of the

type discussed in the Supreme Court’s opinion in Perdue. While

the    district        judge   clearly      indicated   he   would   have   liked   to

apply a Perdue-type enhancement, he expressly stated that he

was not doing so, but was simply awarding the time value of

money, or using current rates to account for a delay in payment.

(J.A. 197 (district judge expressing that “in [his] heart of

hearts” he believed an enhancement was probably appropriate in

this case, but “applying current hourly rates to the recovery of

fees       in   this   case    is   fully    justified   by   the    time   value   of

money”).) 8 Accordingly, we address whether using current rates to

account for either a delay in payment or the lost time value of

money was an abuse of discretion.

       8
       The County complains that the district court’s ruling was
simply a way to enhance the award without calling it an
enhancement. In part, it relies on the district court’s
alternative statement that “to the extent that [applying current
rates is] too generous, which I doubt it is, that this does
represent in my judgment a case of superior – I mean really
superior attorney performance.” (J.A. 197.) The record is clear
that the district court did not apply an enhancement, as that
term is utilized by Perdue, since the district court expressly
disavowed that it was doing so. See id. Since we affirm the use
of current rates as justified by the delay in payment, we do not
have occasion to consider whether a Perdue-type enhancement
would be appropriate in this case.


                                             12
      Our   precedent       is    clear    that,     in    the     typical   case,    an

appropriate      way   to     compensate       for   a     delay    in   payment     for

attorneys’    fees     is    either   to     use     the    current      hourly   rates

instead of historical ones, or to include an award of interest

to account for the lost time value of money. As the Supreme

Court explained in Missouri v. Jenkins:

            Our cases have repeatedly stressed that
            attorney’s fees awarded under [42 U.S.C. §
            1988] are to be based on market rates for
            the services rendered. . . . Clearly,
            compensation received several years after
            the   services    were    rendered   –    as   it
            frequently   is    in   complex   civil    rights
            litigation - is not equivalent to the same
            dollar amount received reasonably promptly
            as the legal services are performed, as
            would normally be the case with private
            billings. We agree, therefore, that an
            appropriate adjustment for delay in payment
            - whether by the application of current
            rather   than    historic    hourly   rates    or
            otherwise – is within the contemplation of
            the statute. . . . An adjustment for delay
            in payment is, we hold, an appropriate
            factor   in    the    determination    of    what
            constitutes   a    reasonable   attorney’s    fee
            under § 1988.

491 U.S. 274, 283-84 (1989) (internal footnote and citations

omitted).

      This Court, too, has repeatedly noted that a court may base

a   reasonable    rate      for   lodestar     purposes     on     current   rates    to

compensate for a delay in payment. See Ohio River, 511 F.3d at

419-20; Johannssen 292 F.3d at 181; Daly, 790 F.2d at 1081.

In Johannssen, for example, we concluded that the district court

                                          13
had abused its discretion in adopting historic rates without

considering the effect of delay of payment on the value of the

fee. As we explained in Johannssen, “consideration of the effect

of time on the value of the fee is mandatory as part of a

consideration of what is reasonably compensatory.” Id. at 180.

      Thus, it is clear that in an appropriate case, the use of

current      rates       is    permissible,      and      that   using    either     current

rates       or    some    appropriate         rate   of    interest      is     required    to

account for such a delay. The use of current rates, to be sure,

can     be       an    imprecise       substitute         for    some    other      form    of

mathematical precision, and interest rates may often be a more

accurate way to calculate the lost time value of money. But as

explained             above,     our     precedent          allows       that     imprecise

methodology.

        The case at bar, however, has a wrinkle that potentially

complicates the application of this general practice to account

for     a    delay       in     payment.      That     wrinkle     is     that    RHI      made

substantial,           but     not   always    timely,      ongoing      payments    to     its

attorneys during the litigation. Indeed, approximately $560,000

of the initial $765,000 in fees and expenses sought by RHI had

already been paid to its attorneys. Thus, the question could be




                                               14
raised as to whether the fact that a significant partial payment

had been made to the attorneys here affects the analysis. 9

     It is certainly a feasible argument that, in a case where

such a partial payment has been made, the two portions of the

fee award (representing the paid and unpaid amounts) could be

subject to different analyses when adjusting to account for a

delay in payment. One portion would be the loss to RHI itself of

what could be characterized as the traditional concept of the

time value of money, representing the amounts it paid to its

attorneys throughout the litigation. Had RHI not had to make

these payments, it could have earned interest on those funds.

The second portion is the loss suffered by the attorneys from a

delay in payment, but is applicable only to those amounts equal

to the historical rates (as determined by the district court to

be reasonable) less the amounts paid by RHI using the reduced

blended rates.




     9
       The fact of partial payment certainly affects who, as
between the plaintiff (RHI) and its attorneys, should receive
what portion of the adjustment to current rates. As RHI’s
counsel acknowledged at oral argument, RHI should receive all
amounts it had previously paid to its attorneys, as well as an
additional amount representing the portion of the adjustment
equal to the percentage of the unadjusted total award that the
previously-paid amount comprises. Indeed, since the bulk of the
fees were paid by RHI, it was RHI, not the attorneys, who lost
most of the time value of its money.



                                15
      At argument before this Court, counsel for RHI was asked

whether any of the three principal cases RHI relied upon to

support the district court’s use of current rates involved a

partial payment to attorneys. RHI’s attorney responded that they

did not involve partial payments. 10 In fact, however, at least

one   of    those—Johannssen—appeared          to   have    involved    a     partial

payment, although this Court did not address the significance of

that fact. 11

      In Johannssen, we reversed a district court’s fee award

because it failed to either use current hourly rates or award

interest in order to account for a delay in payment. It appears

that Johannssen actually involved some amount of partial payment

to    the    plaintiffs’      attorneys    during     the       litigation.    In    a

footnote, this Court explained:

             The   district   court   also   noted     that
             Plaintiffs’  attorneys   had  agreed    to   a
             retainer agreement with them that was to
             provide them with a portion of the fees
             necessary to prosecute the case. The court
             did not explain how this was relevant to the
             issue of delay other than the somewhat
             mysterious  statement   that  “it   was    not

      10
            Oral   Argument    Digital     Recording       at   31:02   (March      21,
2012).
      11
        The other two cases are Daly and Ohio River. In Daly,
there was a contingency fee agreement in the underlying suit and
no partial payments made. 790 F.2d at 1074-75 (describing 25%
contingency fee agreement). In Ohio River, the opinion is silent
as to any type of payment arrangement between the client and its
attorneys. See generally 511 F.3d 407.


                                          16
             insignificant that the clients agreed to
             support the litigation to the extent that
             they did.”

Id. at 180 n.20.

      We did not explain in Johannssen the significance of this

fact,   if   any,    or    how     it   could    impact      the   district    court’s

calculation of any adjustment for delay in payment. Nonetheless,

despite the knowledge that there was at least an agreement by

the   clients   to   make        some   payments      during    the     litigation—and

possibly     payments      were    made—we      held    that    an    adjustment   was

warranted for a delay in payment, and did not differentiate the

calculation     of        that     adjustment         into     segregated      amounts

representing     funds      already      paid    by    the     client    and   amounts

unpaid. This could suggest, although it is by no means clear,

that no different calculation is required, even in cases where

there is a partial payment to the lawyers during the litigation.

The parties have not pointed to any Fourth Circuit cases or out-

of-circuit cases addressing whether a different calculation is

required or warranted for the two possible portions of the fee

award where there has been a partial payment by the client.

      Resolution of this question is not required in the case at

bar, however, because the issue was not squarely raised before

the district court. At the fee petition hearing, in the context

of arguing that no enhancement should be applied, attorneys for

the County argued that there was no delay in payment because the

                                          17
client had paid the largest portion of the fees sought to the

attorneys.    (J.A.   178    (counsel    for       the   County    arguing   “there

wasn’t a big delay in payment . . . [as to] what was paid to Mr.

Coe by Reaching Hearts. In other words, they were paid fees by

their client all along.”).) Thus, the district court clearly

knew that some payments had been made. See id. 12 However, the

issue of whether the portion of the fees representing payments

made by the client should be treated differently than payment

for the portion representing amounts not paid to RHI’s attorneys

was never squarely presented to the district court and it was

not   asked    to     rule    on   the       fee     award    on     that    basis.

Unsurprisingly, then, the district court did not address this

point. 13


      12
        In his affidavit, Ward Coe, the lead counsel for RHI,
explained: "Both RHI – for the money it already has forwarded
for attorneys' fees and costs – and RHI's attorneys – for the
difference between what they have received for services rendered
versus the actual cost of those services—have unfairly lost the
time value of money. The representation of RHI in this matter
also carried with it the risk that full payment for services may
not come at all or, at best, would only come many years later or
at a reduced amount.” (J.A. 215 at ¶ 23.) See J.A. 167 (Mr.
Coe’s statement at the fee hearing that the use of current rates
or an “interest calculation” would “compensate[] for both
Reaching Hearts' outlay of fees and not getting them back for a
long time, and also the delay in payment to attorneys where
we're both delayed in compensation because we're working for a
client who has to pay us to play.").
      13
        The district court recognized that there were separate
delays, at least to some extent, explaining that he would use
current rates to "take into account the time value of money in
(Continued)
                                        18
     Similarly, the County did not argue this specific point on

appeal. Instead, it was raised by the panel at oral argument and

the parties merely responded to the questioning by the panel.

Regardless of whether the County’s failure constitutes a waiver

of the issue, we cannot say that the district court abused its

discretion in this case in failing to treat the two amounts

differently, where that possibility was never presented to it.

Accordingly, we find no abuse of discretion in the court’s use

of current hourly rates to account for a delay in payment.



                                         B.

     We    have      carefully      considered     the     County’s     remaining

challenges to the fee award. These include allegations that the

district    court     failed   to     carefully    scrutinize     the   fees    and

expenses    sought    and   consequently       awarded    fees   that    were   the

result of overstaffing, excessive hours for certain tasks, or

hours    associated    with    RHI’s    lead   counsel     changing     law   firms

during    the   litigation.      As    to   each   of    these   challenges,     we

conclude that the district court acted within its discretion in



the sense that the fee was not received by either the law firm –
by the law firm in part for a considerable period of time and,
of course, the fact that the plaintiff had to lay this money out
from day one all the way to the present time, to the extent that
it paid money." (J.A. 194.) But the court did not consider
whether those separate items should be analyzed differently nor
did the County make that request.


                                         19
reaching its determination that the number of hours and the time

entries were adequately documented and were reasonable.

      To be sure, the approved number of hours expended here (and

indeed, the fee award itself) was quite large. But this was a

hard-fought    case,     one    that       was   vigorously     litigated        by     the

County. The     County      raised     a   large    number     of   defenses,      filed

motions to dismiss on various grounds, fought discovery, came to

two   settlement    conferences        without       authority      to     settle,      and

raised numerous assignments of error in its first appeal to this

Court. It is irrelevant whether, had we been reviewing the fee

petition in the first instance, we might have reduced some of

the hours on the grounds urged by the County, or found that some

hours were potentially the result of duplicative efforts. Daly,

790 F.2d at 1079 (“[W]e are not entitled to disturb a district

court’s     exercise    of     discretion        even    though     we     might       have

exercised    that   discretion        quite      differently.”)       We      review    the

district court’s decision as to the hours expended only for an

abuse of discretion, and we find nothing “clearly wrong” about

its    decision        as      to      the       hours    reasonably            expended

here. See Jadhav, 555 F.3d at 356.

      Similarly, as to the County’s claim that certain expenses

(in-house    photocopying       and    legal       research)    were       inadequately

documented    or    otherwise       unreasonable,        we    find      no    abuse     of

discretion in the district court’s ruling.

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                                 III.

     As both parties acknowledge, RHI will also be entitled to

its reasonable attorneys’ fees and expenses for its successful

efforts in this appeal. Plyler, 902 F.2d at 281-82. Accordingly,

we remand this case to the district court for a determination of

reasonable   attorneys’   fees   and    expenses   related   to   this

appeal. See id.



                                 IV.

     For the foregoing reasons, the order of the district is

affirmed, and we remand to the district court for a further fee

determination.

                                               AFFIRMED AND REMANDED




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