[00:00:00] Speaker 01:
Good morning, Your Honor.

[00:00:04] Speaker 01:
May it please the Court, my name is Dan Lloyd.

[00:00:06] Speaker 01:
On behalf of Appellant City of Vancouver, I will endeavor to reserve five minutes of my time for rebuttal.

[00:00:13] Speaker 01:
The District Court abused its discretion by awarding an attorney fee that was 93% of the request of Lodestar, even though the plaintiff received 1% of the amount she sought.

[00:00:23] Speaker 01:
In my time before the court, I will focus on two of the issues that we argued in our opening brief, unless, of course, the panel directs me otherwise.

[00:00:31] Speaker 00:
Let me ask you this, just to clarify this for me.

[00:00:34] Speaker 00:
She had six claims, and she won on two, right?

[00:00:38] Speaker 00:
One.

[00:00:39] Speaker 00:
One.

[00:00:39] Speaker 00:
And that was against the city.

[00:00:41] Speaker 00:
Correct.

[00:00:43] Speaker 00:
It seemed a bit odd to me.

[00:00:47] Speaker 00:
that what was it what in terms of what was the argument of why the city was responsible but the chief wasn't.

[00:00:57] Speaker 01:
So you bring up a very good point Judge Callahan.

[00:01:00] Speaker 00:
Well I mean I can't go behind the verdict but what was the theory of that argument what did the city do that wasn't argued that because obviously

[00:01:10] Speaker 00:
In a very prior life of mine, I represented the Civil Service Commission.

[00:01:16] Speaker 00:
And so I'm familiar with these rule of one, rule of three, rule of five, those type of things.

[00:01:22] Speaker 00:
And so it wasn't a challenge to that particular rule.

[00:01:25] Speaker 00:
It was that she didn't get, she was first three, and then she kept not getting promoted.

[00:01:33] Speaker 00:
And then she had a conversation, the chief said, well, you had an IA.

[00:01:36] Speaker 00:
And then she started sending letters to the city saying, if you don't promote me, I'm going to sue.

[00:01:42] Speaker 00:
And so what was the retaliation claim?

[00:01:47] Speaker 00:
against that the city was involved with.

[00:01:50] Speaker 01:
The only way I can try to reconcile the verdict exonerating Chief McElvain under the First Amendment, which required the same elements, a substantial motivating factor because of the retaliatory animus, Chief McElvain was exonerated on that, but finding retaliation against the city, is the plaintiff proposed a couple of cat's paw instructions.

[00:02:08] Speaker 01:
And that would be found during instructions 23 and 26.

[00:02:12] Speaker 01:
That's pages 336 and 339 of the excerpts.

[00:02:15] Speaker 01:
We took exception to those instructions.

[00:02:17] Speaker 01:
We didn't think they were a proper statement of law.

[00:02:18] Speaker 01:
But nonetheless, we haven't appealed that.

[00:02:20] Speaker 01:
So that's the only way I can try to reconcile what the jury concluded.

[00:02:24] Speaker 01:
But the jury ultimately concluded only one employment decision.

[00:02:28] Speaker 01:
The very least valuable employment decision

[00:02:31] Speaker 01:
was retaliatory, and the jury completely rejected plaintiff's primary theme of the case that there was this culture of gender discrimination within the Vancouver Police Department.

[00:02:43] Speaker 01:
That was front and center of plaintiff's case, and the jury said, no, you're wrong.

[00:02:48] Speaker 01:
But turning to one of the main reasons why the district court abused its discretion here is that it impermissibly blended the two-step test from Hensley versus Eckerhart

[00:02:59] Speaker 01:
and in so doing, rendered a decision that cannot be reconciled with McCown versus City of Fontana and McInnis versus Kentucky Fried Chicken, both published decisions of this court.

[00:03:10] Speaker 01:
McCown, as Judge Smith, I think Your Honor would know, you're the author of that opinion.

[00:03:14] Speaker 01:
The district court in that case wrote that these plaintiffs, in awarding those attorneys fees of $200,000 rather than the 300,000 rejected, said these attorneys

[00:03:27] Speaker 01:
aren't, have not provided that they are worth $400 and $550 an hour.

[00:03:33] Speaker 01:
That's the same decision that Judge Estadillo did here.

[00:03:36] Speaker 01:
He said the fees, the hourly rate requested by Mr. Bichetto and Mr. Ellis are too high.

[00:03:42] Speaker 01:
So the district court acted well within its discretion by looking to its own decisions and saying these are the hourly rates.

[00:03:49] Speaker 00:
Well, did the district, what did the district court say?

[00:03:51] Speaker 00:
It was too high because you should have gotten a better result?

[00:03:54] Speaker 00:
Or what did the district court say there?

[00:03:56] Speaker 01:
It said two things.

[00:03:57] Speaker 01:
It said first, the district court said, I'm not going to award $6.85 an hour and $5.75 an hour.

[00:04:07] Speaker 01:
What I'm going to do is exactly what Judge Estadillo did a few months earlier in Peña versus Clark County and award a rate that's within the range of all the decisions it had awarded previously.

[00:04:18] Speaker 01:
And that's striking because the Pena versus Clark County case, Judge Estadillo wrote in that decision, which is in Appendix B of our brief, that he emphasized this fee is appropriate because of, quote, the significant degree of success on the part of plaintiff's attorneys.

[00:04:37] Speaker 01:
That is the opposite of what happened here.

[00:04:40] Speaker 01:
The jury said, no, you weren't discriminated against.

[00:04:44] Speaker 01:
The jury said, no,

[00:04:45] Speaker 01:
you did commit misconduct and that justified Chief McElveen passing you over promotion in July of 2018.

[00:04:53] Speaker 01:
The jury said no, you were neither discriminated nor retaliated against when Chief McElveen passed you over again in October of 2018.

[00:05:02] Speaker 01:
And also, the jury rejected the claim that all of the internal affairs investigations that were into complaints of Sergeant Ballou's misconduct, that that constituted retaliation or discrimination.

[00:05:17] Speaker 01:
The jury rejected all of that, and it rejected also the claim that the last promotional decision in January of 2019

[00:05:24] Speaker 01:
was the result of gender discrimination.

[00:05:26] Speaker 01:
Gender discrimination was always the focal point of plaintiff's case, and we know that from what they demanded in settlement.

[00:05:33] Speaker 01:
The very lowest demand, if it was even a demand, it was really an email from Mr. Bushetto to me saying, if you admit gender discrimination,

[00:05:44] Speaker 01:
If you unfound and undo the discipline and the findings of misconduct, and if you rewind Sergeant Blue's seniority date to July of 2018, I think I can get Sergeant Blue to accept $300,000.

[00:05:58] Speaker 01:
but also pay all attorney's fees up through November of 2023.

[00:06:03] Speaker 01:
Obviously, Sergeant Ballou attained none of that.

[00:06:07] Speaker 01:
There was no finding of discrimination.

[00:06:10] Speaker 01:
The jury rejected her claim that she acted in compliance with policy, and the jury rejected the argument that her seniority date needed to be rewound as far as she wanted.

[00:06:21] Speaker 02:
Can I ask you this question?

[00:06:22] Speaker 02:
Yes, sir.

[00:06:23] Speaker 02:
I don't remember from the record

[00:06:26] Speaker 02:
There were settlement discussions that were rejected, far more generous than ultimately came out.

[00:06:35] Speaker 02:
I assume that the jury was unaware.

[00:06:38] Speaker 02:
of any of these settlement discussions, is that correct?

[00:06:40] Speaker 01:
Correct.

[00:06:41] Speaker 01:
Okay.

[00:06:41] Speaker 01:
Correct.

[00:06:42] Speaker 01:
There was actually an order, there was an agreed order to eliminate, barring all evidence of settlement discussions under ER-40, FRE-408, excuse me.

[00:06:51] Speaker 01:
Correct.

[00:06:51] Speaker 00:
So, that thing on attorney's fees that, you know, and having been a trial judge, as I know, I have at least one to my left, you know, when you hear, when you hear a trial,

[00:07:04] Speaker 00:
you know what we all do is when we listen to on a jury trial in our own minds at the end of it we think we think of it in terms of a bench trial what we would do and then when the verdict comes back then we're sort of comparing our thoughts relative to the jury's thoughts.

[00:07:21] Speaker 00:
So a trial judge has a different perspective than people that sit up here on a high bench and just read stacks of papers and

[00:07:31] Speaker 00:
to research the law to the nth.

[00:07:35] Speaker 00:
So there is some deference that goes to attorney's fees and the person that actually heard the trial and whether in their assessment of what's a good result, what is not a good result, what is, I think in here there was also a 33% that was added saying whether this is a high risk case or that type of thing.

[00:08:01] Speaker 00:
So the trial judge does have some perspective that we don't have.

[00:08:05] Speaker 00:
And you both get the, and you argue that one way or another.

[00:08:08] Speaker 00:
So I'm always, I have that perspective in mind here.

[00:08:12] Speaker 00:
But I'm curious about, there were a couple of areas that the trial judge, I mean, you argue that the trial judge did not discount Ms.

[00:08:25] Speaker 00:
Ballou's limited success, but didn't the district court discount

[00:08:29] Speaker 00:
the attorney's fees by 20 to 26% in the lodestar when accounting for the hour relate.

[00:08:36] Speaker 00:
That happened.

[00:08:37] Speaker 01:
That happened, but again, Judge Estadillo selected a rate within the range of Western District.

[00:08:42] Speaker 01:
But then where I would go to that, Judge Callahan, is under Fox v. Vice, the Supreme Court says, yes, the district courts have wide discretion.

[00:08:50] Speaker 00:
OK, but what the district court wrote is that Ms.

[00:08:54] Speaker 00:
Ballou's requested adjustment of 100% did not reflect the likelihood of success at the outset weighed against Ballou's limited trial

[00:09:05] Speaker 00:
limited success at trial.

[00:09:07] Speaker 00:
What does that mean?

[00:09:09] Speaker 00:
What was the court trying to say?

[00:09:11] Speaker 01:
I think I'd be speculating, but I think what the court was trying to say was, I'm not going to give the upper end of the attorney rates.

[00:09:20] Speaker 01:
And to that end, the declarations that were submitted in support of those attorney rates only spoke of the District of Oregon.

[00:09:26] Speaker 00:
Doesn't the district court, doesn't it say on some level

[00:09:33] Speaker 00:
that I did not give the 100% because to reflect the likelihood of success at the outset weighed against Ballou's limited trial, limited success at trial.

[00:09:49] Speaker 00:
So the court acknowledges that it's thinking about the limited success when it reduces the hourly rate.

[00:09:56] Speaker 01:
Right.

[00:09:56] Speaker 01:
But to that point, I would point the court to my count because there, the district court did not accept the hourly rate claimed by those attorneys.

[00:10:06] Speaker 01:
the district court reduced the attorney fees by one third.

[00:10:10] Speaker 03:
Do you have any case that tells us that we're supposed to look at those other decisions that are made by the district court?

[00:10:18] Speaker 01:
I'm sorry, say that again.

[00:10:19] Speaker 03:
Do you have any case that tells us that we're supposed to look at the other cases decided by that judge?

[00:10:26] Speaker 01:
the other cases decided.

[00:10:27] Speaker 03:
I mean, you're referring to a reduction that was, or excuse me, a justification for a fee in another case, correct?

[00:10:37] Speaker 01:
Right.

[00:10:38] Speaker 01:
And that's the Kerr decision.

[00:10:40] Speaker 01:
Well, excuse me.

[00:10:41] Speaker 01:
Kerr says the awards in similar cases must be compared.

[00:10:44] Speaker 01:
But to answer the question that Judge Callahan raised, in McCown, what the court said that the district court properly answered no to this related, unrelated question.

[00:10:56] Speaker 01:
It failed to properly analyze the award in light of the success.

[00:11:02] Speaker 01:
That comparison of the limited success must be to the amount of the award, not just the hourly rate.

[00:11:11] Speaker 01:
So in that sense, the district court fell short.

[00:11:14] Speaker 01:
And what the district court did here on page 11 of the excerpts

[00:11:17] Speaker 01:
It repeated its analysis.

[00:11:20] Speaker 01:
It said the most critical fact.

[00:11:22] Speaker 03:
I think, counsel, you're asking us to parse words and determine whether or not Judge Estadillo had a fulsome discussion of the subject.

[00:11:32] Speaker 03:
But the quote that Judge Callahan provided indicates that at least he considered it.

[00:11:40] Speaker 01:
He considered it on the front end.

[00:11:42] Speaker 01:
He failed to consider the degree of success on the back end, which is what

[00:11:47] Speaker 01:
McCown requires, is what Thorn versus El Segundo requires, that the limited success must be considered in light of the entire award.

[00:11:56] Speaker 01:
That is where the district court fell short.

[00:11:58] Speaker 01:
And what the district court said here was that it repeated its analysis.

[00:12:04] Speaker 01:
It said, the court will not divide plaintiff's counsel's efforts given that Baloo's successful and unsuccessful claims are sufficiently related.

[00:12:12] Speaker 02:
And I take it your position, and I think it's Johnson, I forget which the case is, but you've got the 12 factors, and I gather your position would be that the court basically did it again.

[00:12:24] Speaker 02:
It doubled down on the same analysis that had previously occurred.

[00:12:28] Speaker 01:
Is that right?

[00:12:29] Speaker 01:
It absolutely did, Your Honor, and that was talking about the multipliers.

[00:12:32] Speaker 01:
So on page 13 of the excerpts, it said the time and labor

[00:12:35] Speaker 01:
for counsel to prepare a factually complex case.

[00:12:38] Speaker 01:
That justified the multiplier.

[00:12:39] Speaker 01:
But it said two pages earlier that plaintiff had to build her factually complex case.

[00:12:44] Speaker 02:
And if there's a repetition of those factors, does that require reversal?

[00:12:48] Speaker 01:
Any repetition of just one under both Perdue v. Kenny A. and Cunningham v. City of Los Angeles.

[00:12:55] Speaker 01:
Your Honor, I have a little over two minutes left.

[00:12:59] Speaker 01:
I'd like to reserve what time I have left for a bottle, but I want to answer any questions the court has.

[00:13:03] Speaker 00:
Any further?

[00:13:04] Speaker 00:
I do have a question, so I'll still give you that amount of time.

[00:13:07] Speaker 00:
But the purpose of a contingency adjustment to incentivize taking on cases where clients recover may be minimal, I thought it was to incentivize attorneys to take on cases where the risk of no recovery at all, if you look at FAM,

[00:13:28] Speaker 00:
and that under Washington law, attorneys can recover even when the client's damages award is minimal.

[00:13:35] Speaker 00:
So I'm struggling with when the 33% that went up is what are we supposed to look at to decide

[00:13:47] Speaker 00:
You could say this is a garden variety discrimination case, but there was some recovery.

[00:13:55] Speaker 00:
But what does it mean, a risk of no recovery?

[00:13:59] Speaker 00:
What does that mean?

[00:14:00] Speaker 01:
That's a risk in any contingency case.

[00:14:03] Speaker 01:
And to answer Your Honor's question, I will actually

[00:14:06] Speaker 01:
point to Judge Mendoza when you decided a case on the Eastern District of Washington, it was Langley versus Geico insurance.

[00:14:12] Speaker 01:
There was an RV fire that it was a first-party insurance claim, actionable under the Consumer Protection Act, which has fee shifting, and the plaintiff recovered $621,000.

[00:14:24] Speaker 01:
And the court interpreting Washington law said, while the results are adequate,

[00:14:31] Speaker 01:
They are not so exceptional as to warrant a multiplier.

[00:14:35] Speaker 01:
That's how Washington law is supposed to be applied, that the results must be exceptional.

[00:14:41] Speaker 01:
Otherwise, if that's the case, then the actual reasoning from Judge Estadio here to justify the multiplier was that it furthered the public interest.

[00:14:49] Speaker 01:
Judge Estadio wrote, this is warranted because plaintiff established

[00:14:54] Speaker 01:
in at least one instance, retaliation at a publicly funded and public facing agency.

[00:14:59] Speaker 01:
If that was enough to justify a multiplier, it would become the default rule in every Section 1983 case because the successful plaintiff must prove that the defendant acted under color of state law.

[00:15:11] Speaker 00:
So... Well, what if hypothetically the plaintiff had challenged the rule of three and saying that having a rule of three

[00:15:24] Speaker 00:
is something that is discriminates against women and one on that.

[00:15:30] Speaker 00:
Would that be the type of case that

[00:15:34] Speaker 00:
you're challenging a civil service process that's been, that you're not likely to do it.

[00:15:40] Speaker 00:
But if you won, then that would have a huge effect, right?

[00:15:44] Speaker 00:
If you said you can't have a rule of three, it's always got to be a rule of one, because a rule of three or a rule of five discriminates against women.

[00:15:53] Speaker 01:
I see the question, Judge Callahan, and I think you're onto something there, because then that decision would impact every

[00:16:00] Speaker 01:
woman or really every police officer who applied for promotion in that jurisdiction moving all the way out.

[00:16:08] Speaker 01:
And if the case went up on appeal, it would be binding on all police departments within a given jurisdiction.

[00:16:12] Speaker 01:
So in that sense, there would be an absolute meaningful public benefit.

[00:16:16] Speaker 01:
And to quote McCown is that there is an obligation

[00:16:19] Speaker 01:
to reduce the attorney's fees if there is limited success and no meaningful public benefit.

[00:16:26] Speaker 01:
The only public benefit that the district court found here is what I just articulated, is that the City of Vancouver is a government entity.

[00:16:34] Speaker 00:
Okay, thank you.

[00:16:35] Speaker 00:
I'll give you two minutes for rebuttal.

[00:16:37] Speaker 01:
Thank you.

[00:16:40] Speaker 00:
Good morning.

[00:16:41] Speaker 04:
Good morning.

[00:16:43] Speaker 04:
May it please the court, Stephen Bruschetto, to represent the plaintiff, Julie Blu.

[00:16:47] Speaker 04:
I want to begin by just quoting something from the Supreme Court's decision in the Vice case, Fox v. Vice, where the court said in one of its holdings, a trial court has wide discretion when

[00:17:04] Speaker 04:
but only when it calls the game by the right rules.

[00:17:09] Speaker 04:
Our position here is, and I'm going to talk about each of the... How many claims did you prevail on?

[00:17:14] Speaker 04:
How many claims did we prevail on?

[00:17:16] Speaker 04:
We prevailed on one claim.

[00:17:18] Speaker 00:
Out of six.

[00:17:19] Speaker 04:
There were actually five, the judge concluded there were five legal theories and four adverse actions.

[00:17:29] Speaker 04:
We prevailed on one of the four and one of the five legal theories.

[00:17:34] Speaker 04:
And as required by Judge Smith's decision in McCown, Judge Estudillo was aware of that rule, took it into account in making his decision.

[00:17:47] Speaker 00:
So I know that you, the judge, went back to Ballou 1, which included some of the hours in there.

[00:17:58] Speaker 00:
My understanding of Ballou 1 was where the chief

[00:18:05] Speaker 00:
Had lost on qualified immunity it went to the Ninth Circuit the Ninth Circuit said no go to go to trial and But really the office and so it went to trial the officers call.

[00:18:20] Speaker 00:
I don't that's really a collateral issue I don't see how that I understand how all of the other claims you had to throw in the kitchen sink to have any understanding if they had to know everything but

[00:18:33] Speaker 00:
Qualified immunity to me seems like that's just a separate one, and I understand the argument of why that should be backed out.

[00:18:42] Speaker 00:
So can you respond to that?

[00:18:43] Speaker 04:
Sure.

[00:18:45] Speaker 04:
Thorn versus City of El Segundo was one of the cases the judge relied upon, and I believe that Thorn disposes of that argument.

[00:18:54] Speaker 04:
In Thorn, it involved constitutional claims against individual police officers and a claim against the city of Fontana.

[00:19:02] Speaker 04:
In the procedure of the case, the case went up to the Ninth Circuit on qualified immunity alone.

[00:19:08] Speaker 04:
The Ninth Circuit ruled in favor of the officers.

[00:19:11] Speaker 04:
They were dismissed from the case, came back down, plaintiff won a sex discrimination claim against the city.

[00:19:18] Speaker 04:
and awarded attorney's fees.

[00:19:21] Speaker 04:
Went up to the Ninth Circuit a second time.

[00:19:23] Speaker 04:
Ninth Circuit said that they reversed the attorney fee award because the judge had not considered whether the claims were related.

[00:19:32] Speaker 04:
But what's important is the court said the district court may reasonably conclude

[00:19:38] Speaker 04:
pursuant to Hensley that the Title VII claim and the Section 1983 claim arose out of a common core of facts and that evidence material to one claim was material to the other.

[00:19:51] Speaker 04:
This disposes of the question of whether a Ninth Circuit appeal on qualified immunity

[00:19:58] Speaker 04:
can be related to a Title VII claim.

[00:20:03] Speaker 04:
Judge relied upon it.

[00:20:04] Speaker 04:
He knew of it.

[00:20:05] Speaker 04:
He knew of the defendant's argument that McElvain was somehow separate from the city.

[00:20:13] Speaker 00:
But in the lawsuit that you tried, Ballew was a prevailing party.

[00:20:18] Speaker 00:
I mean, not Ballew, Chief McElvain or whatever.

[00:20:21] Speaker 00:
I don't know if I'm saying that correctly.

[00:20:23] Speaker 04:
McElvain.

[00:20:23] Speaker 00:
McElvain was a prevailing party, right, on his claim.

[00:20:27] Speaker 04:
He was.

[00:20:28] Speaker 04:
as were the individual officers in Thorne.

[00:20:32] Speaker 04:
All of the work of the individual officers the Ninth Circuit held could be reasonably a part of the Title VII claim if it's on a common core of facts, and evidence material to one claim is material to the other.

[00:20:46] Speaker 04:
That is precisely the factual findings in this case.

[00:20:50] Speaker 04:
By the judge, the factual findings are not challenged on appeal.

[00:20:54] Speaker 04:
There's no argument that they're clear error.

[00:20:56] Speaker 04:
In our view, both O'Deama, which is another case involving multiple defendants and successful and unsuccessful claims, disposed of any argument as to whether or not the court could reasonably conclude that the Section 1983 claims were related to the Title VII claim.

[00:21:22] Speaker 02:
slightly to the discussion I had with your friend.

[00:21:25] Speaker 04:
You may.

[00:21:26] Speaker 02:
As you know, the judge tended to repeat in the multiplier analysis things that he had previously considered.

[00:21:34] Speaker 02:
Under our case law, isn't that a reversible error?

[00:21:38] Speaker 04:
I don't believe that what the judge did constitutes repeating prior.

[00:21:44] Speaker 02:
Will you help me with that?

[00:21:45] Speaker 02:
I will.

[00:21:46] Speaker 02:
I didn't count them exactly, but I thought like five different

[00:21:51] Speaker 02:
elements of, I may be wrong, I think like 12 elements, but he seemed to repeat them.

[00:21:58] Speaker 04:
What am I missing?

[00:22:01] Speaker 04:
Two things.

[00:22:03] Speaker 04:
Directly with respect to your question, Washington law regarding multipliers looks at subjective factors at the beginning of the litigation and not at the objective factors.

[00:22:17] Speaker 04:
Okay.

[00:22:18] Speaker 04:
Objective factors would be like the specific time and litigating the case.

[00:22:22] Speaker 02:
And to help answer my question, I look at it in terms of subject, subject, subject, subject.

[00:22:29] Speaker 02:
And that's what I think happened here.

[00:22:31] Speaker 02:
He dealt this subject, that subject again.

[00:22:34] Speaker 02:
So help me with that, please.

[00:22:36] Speaker 04:
I don't believe Washington law says divides things by subjects.

[00:22:41] Speaker 02:
That's why I'm looking at it.

[00:22:43] Speaker 02:
I just want you to help me with what I'm missing.

[00:22:45] Speaker 04:
Sure, and I believe that what you're missing is that what's considered in setting the load star is the objective facts of what happened.

[00:22:54] Speaker 04:
How many hours were incurred?

[00:22:55] Speaker 04:
What's considered in setting the multiplier... What's considered in determining the multiplier are the risks at the outset of the litigation.

[00:23:10] Speaker 04:
For example, there is, in the Declaration of Baloo,

[00:23:14] Speaker 04:
evidence that attorneys who are non-specialists would not take the case because it was too complicated, too much risk, required too much work.

[00:23:27] Speaker 00:
But isn't that all go to, yeah, you might not recover a lot, what you were asking, but I thought it was supposed to be for cases that, if you cite FAM, where there was a risk of no recovery at all.

[00:23:46] Speaker 04:
Well, there was a risk of no recovery at all in this case.

[00:23:50] Speaker 04:
I believe the reference in FAM is to whether there is a risk the attorneys will receive no compensation.

[00:23:58] Speaker 04:
Washington law requires essentially three things.

[00:24:00] Speaker 04:
Number one, it be a contingent fee agreement.

[00:24:03] Speaker 04:
Number two, the attorneys

[00:24:05] Speaker 04:
receive no compensation if they lose.

[00:24:11] Speaker 04:
I mean in some of these circumstances there will be retainer agreements that say maybe we get a flat fee in addition to a contingency or maybe if we lose we get a certain amount of money.

[00:24:26] Speaker 04:
In this case there was a risk of no recovery at all for the attorneys.

[00:24:32] Speaker 02:
But it gets down ultimately

[00:24:35] Speaker 02:
You had an attorney fee award of over $600,000 for an award to your client of $11,000.

[00:24:44] Speaker 02:
It almost shocks the conscience, doesn't it?

[00:24:46] Speaker 02:
I mean, you're a good lawyer.

[00:24:47] Speaker 02:
I hope people make a lot of money.

[00:24:49] Speaker 02:
But I'm really struggling with how the juxtaposition between those two works.

[00:24:57] Speaker 04:
Well, Judge, the thing I would say is, and we rely to a great extent on your opinion in McCown.

[00:25:04] Speaker 04:
In your opinion in McCown, you say you should compare damages with the amount awarded with the amount sought.

[00:25:16] Speaker 04:
You also say where there's no other relief.

[00:25:20] Speaker 04:
Those are part of your words.

[00:25:21] Speaker 02:
I understand that.

[00:25:23] Speaker 04:
Great words, by the way.

[00:25:26] Speaker 04:
And in this case, Judge Estudio was extremely careful.

[00:25:33] Speaker 04:
If you look carefully at his opinion, what he focused on in making the 10% reduction

[00:25:40] Speaker 04:
in the load start, he focused on not only the tangible benefits to Baloo, but the intangible benefits.

[00:25:49] Speaker 02:
And I credit the concept of lowering the hourly rate.

[00:25:52] Speaker 02:
I get that.

[00:25:54] Speaker 02:
But it's the quantum of the whole thing

[00:25:59] Speaker 04:
Let me get there.

[00:26:00] Speaker 02:
OK.

[00:26:02] Speaker 02:
Go ahead.

[00:26:02] Speaker 04:
You know, it's not only the fact that there were intangible benefits, equitable relief, it's also a finding of a public benefit.

[00:26:13] Speaker 00:
Well, it's the elephant in the room is, I think, what you're talking about when you're looking at those numbers.

[00:26:19] Speaker 00:
And it just struck me as bizarre that the police chief

[00:26:27] Speaker 00:
is the prevailing party on his claims and then I didn't really see what was your argument that the city was somehow what what did they do extra on retaliation that that the chief didn't do because it really all comes out of what the chief did it seems like

[00:26:44] Speaker 00:
If you're saying that it's all one and the same, they would let the cats pause, what he's saying.

[00:26:51] Speaker 04:
You're correct.

[00:26:52] Speaker 04:
You're absolutely correct.

[00:26:54] Speaker 04:
That supports us, not them.

[00:26:57] Speaker 04:
It supports us.

[00:26:57] Speaker 00:
Tell me how it supports you.

[00:26:59] Speaker 04:
Because all the decisions were made by the chief.

[00:27:04] Speaker 04:
The city is responsible for retaliation because all the decisions were made by the chief.

[00:27:09] Speaker 00:
But the jury said what the chief did was okay.

[00:27:11] Speaker 04:
The jury didn't say what the chief did was okay.

[00:27:14] Speaker 04:
The jury said that it did not hold him liable for discrimination under section 1983.

[00:27:26] Speaker 04:
That can be reconciled with the verdict against the city because it requires specific discriminatory animus by the chief.

[00:27:36] Speaker 04:
It is plausible that the jury, what the jury concluded is that there was a sexually discriminatory retaliatory culture at VPD and that influenced the retaliation decision and that the chief knew about it and didn't do anything about it.

[00:27:54] Speaker 04:
A jury could conclude that's not enough for Section 1983 liability, but it's enough for Title VII liability.

[00:28:02] Speaker 03:
Well, and I'm not so sure that we at the Court of Appeals should be

[00:28:06] Speaker 03:
looking at all the different possible reasons that a jury reached that decision.

[00:28:12] Speaker 03:
But I want you to answer Judge Smith's question, which is the shocking nature in the amounts here.

[00:28:19] Speaker 04:
Well, again, I believe the judge's findings, the judge carefully looked at the case law and applied the rules.

[00:28:28] Speaker 04:
The judge found it was a low damages case.

[00:28:31] Speaker 04:
The judge found it provided a public benefit the judge provide found it provided intangible benefits to blue and the judge found that the amount Was reasonable benefit to the public that when you have a low bit low damage case that the city's going to have to pay and

[00:28:51] Speaker 00:
Hundreds of thousands of attorneys fees is that the benefit the benefit to the public is?

[00:28:55] Speaker 04:
So then that then the city's going to quake in its boots even if someone is claiming not very much in damages But you're going to get it later the the benefit to the public is exactly what the judge said it shed the verdict shed light on Unlawful practices of the city and that's important to the public

[00:29:17] Speaker 04:
I also commend, as an indirect answer to your question, for the court to look at the differing decisions on the motion to re-tax costs and the motion to award attorney's fees.

[00:29:30] Speaker 04:
Plaintiff argued

[00:29:32] Speaker 04:
very strongly that on the motion to re-tax costs, the judge should be looking at the public benefit, the intangible benefits to women in the workplace as well as Baloo.

[00:29:45] Speaker 04:
The judge said, that's just not what the law provides.

[00:29:49] Speaker 04:
He discounted the 700 hours of work under FRCP 68.

[00:29:58] Speaker 04:
That decision is not appealed.

[00:30:01] Speaker 04:
He handled the attorney fee claim differently.

[00:30:04] Speaker 04:
He found public benefit.

[00:30:07] Speaker 04:
He found intangible benefits to Valu.

[00:30:10] Speaker 04:
He found it important that there was a finding of retaliation by the city.

[00:30:14] Speaker 04:
I don't think any of that is,

[00:30:19] Speaker 04:
He followed the correct rules under VICE, under Fox v. VICE, and he's entitled to a wide degree of discretion in terms of the importance of those.

[00:30:31] Speaker 04:
He's the one who listened to that evidence.

[00:30:34] Speaker 04:
He's the one who heard the women in the police force of the Vancouver PD talking about a history of discrimination and retaliation against them.

[00:30:43] Speaker 04:
He's the one who heard two commanders in VPD talk about

[00:30:48] Speaker 04:
McElvain bargaining with them for a promotion for Baloo in exchange for dismissing their retaliation complaints.

[00:30:56] Speaker 04:
He's the one who heard them testify that McElvain changed his approach and issued the first statement in VPD history from the chief saying, I won't tolerate sexist conduct after that meeting.

[00:31:12] Speaker 04:
That's important stuff.

[00:31:15] Speaker 04:
It's very important stuff.

[00:31:17] Speaker 04:
And that's why, in answer to your question, Judge Mendoza, that's why it's important that he's got a view of this case that this court doesn't.

[00:31:29] Speaker 02:
Is there a cap?

[00:31:31] Speaker 02:
Could the judge have doubled the attorney fee award in this case based on the same criteria that you've just articulated?

[00:31:40] Speaker 02:
A million dollars.

[00:31:42] Speaker 04:
Is there a cap?

[00:31:44] Speaker 04:
There is no case that sets any cap.

[00:31:49] Speaker 04:
You know, the judge has to make a reasonable decision and that of course is where applying the rules of the game correctly come into play.

[00:32:03] Speaker 04:
Here, the judge said he looked at the results obtained, looked at the public benefit, and concluded that a one-third enhancement of the lodestar was appropriate.

[00:32:18] Speaker 04:
I think that that is

[00:32:22] Speaker 00:
I mean, I understand your point about... But I guess it's like, okay, on the one hand, you didn't get as much attorneys by the hour because you only got a minimal success, but then on the other hand, we're having... But it was a huge success, so I'm going to give you a third more.

[00:32:40] Speaker 04:
I don't think that he said.

[00:32:42] Speaker 04:
I mean, if you take a look at his words in determining the multiplier, he said minimal success.

[00:32:51] Speaker 04:
He didn't construe it as an outstanding success.

[00:32:55] Speaker 04:
He was aware of that.

[00:32:56] Speaker 04:
But what he found important was counsel, the need to encourage counsel to accept these cases.

[00:33:04] Speaker 04:
Ballou presented evidence.

[00:33:06] Speaker 04:
She talked to 10 lawyers.

[00:33:08] Speaker 04:
Nobody but current counsel would do a contingent fee for her.

[00:33:12] Speaker 04:
She didn't have the money to pay for a lawyer.

[00:33:14] Speaker 04:
He focused on Fox versus Vice with the important congressional purposes of vindicating these civil rights, and he found a public benefit.

[00:33:27] Speaker 04:
I don't think that that exercise of discretion when he follows the rules

[00:33:33] Speaker 04:
can be set aside.

[00:33:35] Speaker 04:
It's not a question of whether this court should decide on a different amount.

[00:33:40] Speaker 04:
It's a question of whether he abused his discretion and his findings are correct.

[00:33:47] Speaker 04:
Thank you, Judge.

[00:33:49] Speaker 00:
Thank you.

[00:33:57] Speaker 01:
Thank you, Your Honor.

[00:33:57] Speaker 01:
May it please the Court, first as to

[00:34:02] Speaker 01:
Mr. Braschetto's statement that this was a low damages case from the outset, he demanded $1.2 million on behalf of his client.

[00:34:09] Speaker 01:
This was never a low damages case in their eyes because they sought $1.2 million.

[00:34:16] Speaker 01:
In addition to essentially the defendant falling on the grenade and saying, we discriminated against you.

[00:34:23] Speaker 03:
What about his argument of this is part of the reason this went up on the multiplier is this public benefit?

[00:34:31] Speaker 03:
What about that and that the judge considered that as he made that decision?

[00:34:37] Speaker 01:
So first, I've addressed all that Judge Estadio said about the public benefit.

[00:34:41] Speaker 01:
Now, Mr. Bichetto referenced this April 2019 meeting in which the culture changed and Chief McElvain started treating women better.

[00:34:50] Speaker 01:
First, the jury rejected the claim that women were treated worse in the first instance.

[00:34:55] Speaker 01:
And second, I would actually

[00:34:56] Speaker 01:
direct the court to page 212 of the excerpts.

[00:34:58] Speaker 01:
This is the declaration of Julie Blue where she writes that she has testified about how bad it is at Vancouver Police Department all the way through trial and her words, it's not fair for me or other women to work under these conditions.

[00:35:18] Speaker 01:
So for him to say that the conditions of the Vancouver Police Department after this April 2019 meeting

[00:35:24] Speaker 01:
improved so much for women, that goes against what his client says.

[00:35:28] Speaker 01:
In fact, what the women who testified said was that there was never a problem with discrimination.

[00:35:35] Speaker 01:
That's the testimony of Sergeant Daniel Woss, the testimony of Sergeant Barbara Kipp, the testimony of Deanna Watkins.

[00:35:42] Speaker 01:
All of them testified there was never a problem with gender discrimination.

[00:35:45] Speaker 01:
So no, there was no change after this April 2019 meeting.

[00:35:50] Speaker 01:
And to that point too, Judge Mendoza, is plaintiff ostensibly prevailed on the theory that by filing the lawsuit on January 3rd, 2019,

[00:36:02] Speaker 01:
That's what led to Julie Blue being denied a promotion that same month.

[00:36:08] Speaker 01:
Now, we argued against that.

[00:36:09] Speaker 01:
We put on evidence saying that Chief McElveen had no idea the lawsuit was filed.

[00:36:14] Speaker 01:
But Judge Estadillo sent that issue to the trial.

[00:36:17] Speaker 01:
And to your point, it would be difficult, if not impossible, for this court to dive behind the verdict.

[00:36:24] Speaker 01:
But their argument, what they submitted to the jury under the First Amendment claim,

[00:36:30] Speaker 01:
under the Title VII claim, under the WLAD claim, was that filing the lawsuit cost her a promotion.

[00:36:37] Speaker 01:
So for her to say that filing the lawsuit was why I got promoted, it self-contradicts.

[00:36:42] Speaker 01:
And in that sense, this order, I would agree with Mr. Machetto that it is necessary to read the order, because under Camacho versus Bridgeport Financial,

[00:36:53] Speaker 01:
The Ninth Circuit reviews the District Court's own reasoning, not after-the-fact rationalizations by counsel.

[00:37:00] Speaker 01:
And regardless of the after-the-fact rationalizations today, this order cannot be upheld and be consistent with McCown.

[00:37:09] Speaker 01:
Unless the Court has further questions, I thank the Court for its time.

[00:37:12] Speaker 00:
No further questions of either.

[00:37:13] Speaker 00:
Thank you both parties for your argument.

[00:37:15] Speaker 00:
This matter will stand submitted.

[00:37:18] Speaker 00:
And I believe this court is in recess for the week.

[00:37:21] Speaker 00:
Is that correct?

[00:37:23] Speaker 00:
I'm correct.

[00:37:23] Speaker 00:
Because we're not coming back tomorrow.

[00:37:25] Speaker 00:
So if it is not in recess, we won't be there.