Ninth Circuit Reduces Fee Award

Today the Ninth Ciruit reversed the district court's awarding of almost $400,000 in attorneys' fees. Benton v. Oregon Student Assistance Comm'n (CA9). How so? The case is the equivalent of Farrar v. Hobby (lots of smoke, but no fire). What's interesting about the opinion is how the panel sidesteps the abuse of discretion standard of review.

The panel analyzed the law of attorneys fees and held that the district court misapplied the law. Since mistakes of law get de novo review, the panel reversed. Of course, using this method, appellate courts could almost always apply de novo review to attorneys' fee awards. It seems that there are only two decisions that are truly subject to abuse of discretion review: the number of hours worked, and the reasonable hourly rate. Every other issue could be cast as a legal one, since the reviewing court could always pull out the Farrar v. Hobby card, and write: "The district court misapplied Farrar. Under Farrar, the plaintiff really wasn't all that successful, despite what the district court held." Of course, since Farrar still involves weighing and sifting of facts, this would be something of a perversion of the abuse of discretion standard of review.