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Prison Legal News v. Ryan, AZ, Order Granting Attorneys’ Fees on Appeal, PLN Censorship, 2023

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Case 2:15-cv-02245-ROS Document 364 Filed 03/21/23 Page 1 of 8

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

FILED
MAR 21 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

PRISON LEGAL NEWS, a project of: other
Human Rights Defense Center,
Plaintiff-Appellee,
v.

No.

19-17449

D.C. No. 2:15-cv-02245-ROS
District of Arizona,
Phoenix

CHARLES L. RYAN, in his official capacity ORDER
as Director of the Arizona Department of
Corrections and in his individual capacity;
GAIL RITTENHOUSE, in her official
capacity as Division Director, Support
Services of the Arizona Department of
Corrections and in her individual capacity;
JEFF HOOD, in his official capacity as
Deputy Director of the Arizona Department
of Corrections and in his individual capacity;
ALF OLSON, in his official capacity as an
employee of the Office of Publication
Review of the Arizona Department of
Corrections and in his individual capacity;
JAMES RIGGS, in his official capacity as an
employee of the Office of Publication
Review of the Arizona Department of
Corrections and his individual capacity;
JAMIE GUZMAN, in her official capacity as
an employee of the Office of Publication
Review of the Arizona Department of
Corrections,
Defendants-Appellants,
and
UNKNOWN PARTIES, named as: Does 1 to
20 (inclusive),
Defendant.

Case 2:15-cv-02245-ROS Document 364 Filed 03/21/23 Page 2 of 8

Before: Lisa B. Fitzgerald, Appellate Commissioner.
I. Introduction
Under the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988(b),
the court awarded attorneys’ fees to appellee Prison Legal News (PLN). The court
referred to the appellate commissioner the determination of an appropriate fee
amount. PLN requests $278,487.50 in fees for 409.3 hours of work by San
Francisco law firm Rosen Bien Galvan & Grunfeld LLP (RBGG):
Timekeeper

Position

Admitted
Merits
Sanford Jay Rosen Partner
1962
Lisa Ells
Partner
2006
Amy Xu
Associate 2016
Karen Stilber
Paralegal N/A
Subtotal
Fees
Sanford Jay Rosen Partner
1962
Lisa Ells
Partner
2006
Amy Xu
Associate 2016
Karen Stilber
Paralegal N/A
Write-off
Subtotal
Total

Rate

Hours Fees

$1,350 13.2 $ 17,820.00
$ 850 121.7 $103,445.00
$ 575 148.0 $ 85,100.00
$ 400 38.6 $ 15,440.00
321.5 $221,805.00
$
$
$
$

850
850
575
400

36.9
5.6
42.5
2.8

$ 31,365.00
$ 4,760.00
$ 24,437.50
$ 1,120.00
($ 5,000.00)
87.8 $ 56,682.50
409.3 $278,487.50

Fees in the amount of $208,865.62 are awarded.

2

19-17449

Case 2:15-cv-02245-ROS Document 364 Filed 03/21/23 Page 3 of 8

II. Discussion
A. Reasonable Hourly Rates
1. Relevant Community
PLN argues that the relevant community for determining market rates is San
Francisco; appellants Arizona Department of Corrections officials (the
Department) argue that the relevant community is Phoenix. San Francisco is the
relevant community because PLN has shown that competent Phoenix counsel was
not available to represent PLN on appeal. See Gates v. Deukmejian, 987 F.2d 1392,
1404-06 (9th Cir. 1992) (concluding that a district court did not abuse its discretion
in awarding the Rosen firm’s San Francisco rates on the ground that Sacramento
attorneys with adequate expertise were unavailable); see also Melendres v. Arpaio,
No. 13-16285, 2017 WL 10808812, at *3-4 (9th Cir. Mar. 2, 2017) (district court
and appellate court awarded out-of-forum rates where counsel contacted many
local firms that were unwilling to take the case).
PLN submitted evidence that it tried to find Arizona lawyers willing and
able to handle the appeal and were unsuccessful. See PLN Appl., Wright Decl.,
Docket Entry No. 66-5, at 8-9. Several law firms had conflicts of interest; other
firms or organizations lacked the capacity. See id. Lawyers in the Phoenix office of
Ballard Spahr LLP served as local counsel but were not willing to fill the role of
lead counsel. See PLN Appl., Bodney Decl., Docket Entry No. 66-6, at 2-3 (“[I]t

3

19-17449

Case 2:15-cv-02245-ROS Document 364 Filed 03/21/23 Page 4 of 8

would have been considerably more time consuming and less cost-efficient for me
and my colleagues or in-house counsel to have taken over the role of briefing and
arguing the appeal and preparing the fee motion than for RBGG to handle this
appeal.”)
2. Applicable Rates
The Department does not challenge PLN’s showing that the requested rates
are in line with San Francisco prevailing market rates. See Blum v. Stenson, 465
U.S. 886, 895 n.11 (1984) (rate is reasonable if in line with prevailing market
rates). The Department also does not challenge PLN’s request to award 2022 rates
for work performed in 2019-2022 to account for delay in payment. See Missouri v.
Jenkins, 491 U.S. 274, 283-84 (1989) (approving use of current rather than historic
rates to account for delay in payment). The requested 2022 San Francisco rates are
reasonable and are awarded.
Rosen and fee expert Richard M. Pearl state that the requested rates are in
line with prevailing market rates. See PLN Appl., Rosen Decl., Docket Entry No.
66-3, at 15; PLN Appl., Pearl Decl., Docket Entry No. 66-7, at 12, 16-17. The
requested rates are in fact the Rosen firm’s 2022 billing rates and courts have
approved 2021 San Francisco rates of $1,250 for Rosen, $775 for Ells, $485 for
Xu, and $375 for paralegal Stilber. See Rosen Decl., Docket Entry No. 66-3, at 1517; Andrews v. Equinox Holdings, Inc., 570 F. Supp. 3d 803, 807-08 (N.D. Cal.

4

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Case 2:15-cv-02245-ROS Document 364 Filed 03/21/23 Page 5 of 8

2021); Armstrong v. Newsom, No. 4:94-cv-02307-CW, Docket Entry No. 3283, at
6 (N.D. Cal. June 22, 2021) (Stipulated Order Exh. A). Rosen also states that he
exercised billing judgment to reduce his rate to Ells’s rate for the fee work he did
when she was unavailable. See Rosen Decl., Docket Entry No. 66-3, at 21.
B. Reasonably Expended Hours
1. Limited Success
The Department is correct that PLN should not recover full fees because it
was only partially successful in defending against the appeal. A prevailing party
may recover fees for work on an unsuccessful claim only if that claim is related to
the successful claim and the party won substantial relief overall. See Hensley v.
Eckerhart, 461 U.S. 424, 440 (1983). Any fee award must be reasonable in relation
to the results obtained. See id.
Even if PLN’s successful and unsuccessful challenges to Order 914’s
prohibition on inmates receiving sexually explicit material were related, PLN did
not win substantial relief overall. This court “conclude[d] that most of the order’s
relevant provisions are facially constitutional under the First Amendment and that
most of the as-applied challenges lack merit.” PLN v. Ryan, 39 F.4th 1121, 1126
(9th Cir. 2022).
This court interpreted the Order’s definition of sexually explicit material to
include only graphic depictions of nudity or sex acts and not mere mentions of sex.

5

19-17449

Case 2:15-cv-02245-ROS Document 364 Filed 03/21/23 Page 6 of 8

Based on this narrow reading of the Order, this court reversed in part the district
court’s determination that the Order was facially unconstitutional. See id. at 1130,
1132, 1135. This court agreed that the Order was facially unconstitutional only as
to the portion of section 1.2.17 prohibiting content that may cause arousal or be
suggestive of sex. Consequently, this court affirmed in part the district court’s
ruling on the facial challenge and severed the unconstitutional provision. See id. at
1133-34. PLN also achieved mixed results on its as-applied challenges. Of the four
redactions the district court concluded were improper, this court affirmed as to one,
vacated and remanded as to one, and reversed as to the remaining two. See id. at
1136-38.
PLN’s assertion in the fee reply that it won substantial additional relief in the
district court on grounds not appealed by the Department factors into the award of
district court fees not PLN’s degree of success on appeal.
2. Appropriate Award
The court has discretion to eliminate specific hours or simply reduce the
award to account for limited success. See Hensley, 461 U.S. at 436. PLN states that
it was not possible for its attorneys to segregate their hours by argument and thus
PLN cannot separately identify time spent on unsuccessful arguments. See id. at
435. PLN proposes at most a 10-percent reduction to account for limited success.
See Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)

6

19-17449

Case 2:15-cv-02245-ROS Document 364 Filed 03/21/23 Page 7 of 8

(permitting a 10-percent reduction as an exercise of discretion). The Department
does not specify an amount by which fees should be reduced.
PLN’s attorneys report that after careful review they made billing judgment
reductions of $97,467.55 in fees, or about 25 percent of the total fees billed, for
administrative work, time billed by non-core team members, some fee work, and
time that was inefficient or unduly duplicative. See PLN Appl., Docket Entry No.
66-1, at 2; Ells Decl., Docket Entry No. 66-4, at 16-17. To arrive at an award that
is reasonable in relation to the results obtained, a further 25-percent reduction is
appropriate here. See Hensley, 461 U.S. at 440. The facts and legal theories on
appeal are too intertwined to apportion fees based on success or failure on
particular issues. See id. at 438. PLN’s unsuccessful facial challenge to the Order
in general overlaps in large part with PLN’s successful facial challenge to a portion
of section 1.2.17. Similarly, PLN’s as-applied challenges to the four redactions
were presented as one, with the exception of analyzing the individual text.
PLN reasonably spent the resulting $208,865.62 in fees on the work
performed in relation to the result obtained. The Department does not challenge the
reasonableness of PLN’s requested hours on any ground other than limited success.
PLN’s attorneys prepared an answering brief, supplemental excerpts of record, and
the fee motion, as well as a mediation statement, motions to extend time, a motion

7

19-17449

Case 2:15-cv-02245-ROS Document 364 Filed 03/21/23 Page 8 of 8

to transmit exhibit, responses to argument notices, and a citation of supplemental
authorities. Lead counsel also presented oral argument in San Francisco.
III. Conclusion
Under the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988(b),
attorneys’ fees in the amount of $208,865.62 are awarded in favor of appellee
Prison Legal News. See 9th Cir. R. 39-1.9. This order amends the court’s mandate.

8

19-17449
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