Hiken v. DOD, No. 13-17073, 836 F.3d 1037 (9th Cir. 2016) (Parker, J.)

Hiken v. DOD, No. 13-17073, 836 F.3d 1037 (9th Cir. 2016) (Parker, J.)

Re: Request for records concerning incident in Iraq involving Italian journalist, and other information relating to Rules of Engagement in effect during U.S. military's involvement in Fallujah

Disposition: Vacating district court's fee award and remanding

• Attorney Fees, Calculations: The Court of Appeals for the Ninth Circuit "vacate[s] the district court's fee award and remand[s] for a recalculation of the appropriate rate." The court finds that "a fee applicant’s decision to request a higher rate does not permit a court to disregard different rates if the evidence in the record supports them." The court finds that "[a]s our case law makes clear, it is incumbent upon the district court to provide a 'concise but clear explanation of its reasons for the fee award.'" The court explains that "[i]n justification of the rates that it found reasonable, the court below said that '[the requesters] fail to provide evidence of prevailing market rates in this forum during the time period at issue[]'" even though the requesters did produce such evidence.
  
  Circuit Judge Rawlinson, dissenting, argued that "the district court acted within its discretion in determining the appropriate fee award." Judge Rawlinson stated that, "[a]bsent a showing that the fees were earned in cases that were analogous to litigation under the Freedom of Information Act, the district court was not obligated to accept these rates as historical market rates."
   
• Attorney Fees, Eligibility: The Court of Appeals for the Ninth Circuit holds that "there is no question that [the requesters] fall[s] within the class of litigants entitled to attorney fees on appeal, and [the requesters] may request attorney fees on appeal." The court disagrees with the government's argument "that any request for fees related to this appeal is premature because even if [the court] vacate[s] and remand[s], the district court may still, after review of the evidence and exercise of its discretion, award the same sum."