Federal Practice Manual for Legal Aid Attorneys: 9.4.15 Frequently Occurring Hourly Rate Issues
Five frequently recurring issues concerning reasonable hourly rates follow:
Five frequently recurring issues concerning reasonable hourly rates follow:
The Equal Access to Justice Act (EAJA) presents an entirely different framework for computing hourly rates. Under the EAJA attorney fees are limited to $125 per hour, subject to certain exceptions.4623
Earlier Supreme Court opinions such as Hensley contemplated that the lodestar could be augmented by a multiplier in appropriate circumstances.4635 Later opinions, however, rendered the multiplier rare in federal court. Most prominently, the Court in City of Burlington v.
Neither § 1988 nor most federal fee-shifting statutes specify when the fee motion must be filed.
Ordinarily a legal aid organization agrees to represent the client without charging a fee, except for recovering court-awarded fees.
Jeff D. notwithstanding, in the vast majority of cases otherwise eligible prevailing plaintiffs recover attorneys’ fees. And most fee disputes are resolved by settlement rather than litigation.
This Chapter addresses three topics. First, we discuss the subject matter jurisdiction of the federal courts and review the principal legislative provisions by which Congress has vested federal courts with jurisdiction. Second, we review the abstention doctrines, which are limitations on the exercise of that jurisdiction. Third, we cover the jurisdiction of state courts over federal claims.
Both Article III, Section II of the Constitution and 28 U.S.C. § 1331 use the same phrase, “arising under,” to define federal question jurisdiction, but the Supreme Court has not interpreted the constitutional and statutory language identically.
Since Congress conferred general federal question jurisdiction in 1875154, the Court has consistently held that the statutory grant is not as broad as the Constitution would allow.155 The primary test that has been developed for determining whether a civil action arises under the Constitution or laws of the United States for purposes of § 1331 requires: (1) a substantial federal element; and (2) such element being part of the plaintiff’s “well-pleaded complaint.”
Not only must the action “arise under” the Constitution or federal law, but the federal question must also appear on the face of a “well-pleaded complaint.”178 In practice, this means that plaintiffs may not invoke federal jurisdiction by raising contrived federal issues in the complaint 179 or anticipated federal defenses.180 “Nor can federal jurisdiction rest upon an actual or anticipated counterclaim.”181
The Declaratory Judgment Act is not, strictly speaking, a jurisdictional statute.209 Under the Act, federal courts have the power in cases of “actual controversy” to “declare the rights and other legal relations of any interested party seeking such declaration, whether or not further relief is or could be sought.210 In suits against federal or state agencies or officials for review of adverse agency action, plaintiffs often seek judgments declaring the action illegal as well as (occasionally in
Section 1361 of Title 28 confers on the district courts “jurisdiction of any action in the nature of mandamus to compel” a federal officer, employee, or agency “to perform a duty owed to the plaintiff.”217 The mandamus jurisdiction conferred by this provision is available only if the plaintiff has a clear right to relief, the duty breached is “a clear nondiscretionary duty,” and no other remedy is available.218 The significance of this statute as a separate source of federal jurisdiction has fad
The Administrative Procedure Act (APA) creates a cause of action against agencies of the federal government acting under federal law.220 The APA authorizes judicial review, establishes the form and venue of judicial review proceedings, states what agency actions are reviewable, and describes the scope of review of such actions.221 The Act eliminates the defense of sovereign immunity in cases seeking relief other than money damages and claiming that a federal agency, officer, or employee acted or
The Tucker Act gives the U.S. Court of Federal Claims jurisdiction:
. . . to render judgment upon any claim against the United States founded either upon the Constitution, or any Act of Congress or any regulation of an executive department, or upon any express or implied contract with the United States, or for liquidated or unliquidated damages in cases not sounding in tort.225
Pursuant to the Federal Tort Claims Act (FTCA):
In order to understand the supplemental jurisdiction statute, the legal aid lawyer should first be familiar with the basic pre-codification principles of pendent and ancillary jurisdiction established by the Supreme Court.
When a plaintiff files a federal claim against a defendant, under what circumstances may it add to the complaint a state law claim over which there is no independent basis of federal jurisdiction? The doctrine of pendent jurisdiction formerly governed the exercise by federal courts of subject matter jurisdiction over claims that lack an independent basis of jurisdiction. The Supreme Court’s decision in United Mine Workers v.
The related doctrine of ancillary jurisdiction developed to empower a federal court to hear some counterclaims and third-party claims over which it lacked an independent jurisdictional basis.274 In a case in which a plaintiff filed a federal claim against a defendant, under what circumstances may the defendant bring claims against the plaintiff or others over which there is no independent basis of federal subject-matter jurisdiction? Such claims are brought by defending parties which have not chosen the federal forum.
A threshold question for advocates is whether to join federal and transactionally related state law claims in federal or state court. In Rhoten v. Dickson, the Kansas Supreme Court suggested caution before reflexively filing in federal court.318 In Rhoten, the plaintiff joined federal and related state law claims in federal court. The trial court granted the defendant’s motion for summary judgment on the federal claim and the court dismissed the remaining state law claims pursuant to Section 1367(c).
Should attorneys for plaintiffs file claims in state court that arise under both federal and state law, defendants may remove all claims.
The statutory procedures for removal are to be strictly construed.373 A defendant removing a civil action must file in the U.S.
Advocates should be aware of an infrequently litigated statute concerning removal of civil rights cases. 28 U.S.C. § 1443(1) allows removal of “civil actions or criminal prosecutions, commenced in a State court” and which are brought “[a]gainst any person who is denied or cannot enforce in the courts of such State a right under any law providing for the equal civil rights of citizens of the United States, or of all persons within the jurisdiction thereof.”396
Perhaps the Supreme Court’s most notable application of the doctrine of abstention was in Younger v. Harris, which specified conditions for federal courts abstaining from state judicial proceedings.