author: BERZON, Circuit Judge:

text:
    PUBLIC INTEGRITY ALLIANCE, INC., an Arizona nonprofit membership corporation; Bruce Ash, an individual; Fernando Gonzales, an individual; Ann Holden, an individual; Ken Smalley, an individual, Plaintiffs-Appellants, v. CITY OF TUCSON, a chartered city of the State of Arizona; Jonathan Rothschild, in his capacity as the Mayor of the City of Tucson; Regina Romero, in her capacity as a member of the Tucson City Council; Paul Cunningham, in his capacity as a member of the Tucson City Council; Karin Uhlich, in her capacity as a member of the Tucson City Council; Shirley Scott, in her capacity as a member of the Tucson City Council; Richard Fimbres, in his capacity as a member of the Tucson City Council; Steve Kozachik, in his capacity as a member of the Tucson City Council; Roger Randolph, in his capacity as the Clerk of the City of Tucson, Defendants-Appellees.
    No. 15-16142
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted En Banc June 21, 2016 San Francisco, California
    Filed September 2, 2016

      Kory A. Lanhofer (argued), Thomas J. Basile, and Roy Herrera Jr., Brownstein Hyatt Farber Schreck, LLP, Phoenix, Arizona, for. Plaintiffs-Appellants.
    Dennis P. McLaughlin (argued), Principal Assistant City Attorney; Michael G. Rankin, City Attorney; City Attorney’s Office, Tucson, Arizona; for Defendants-Ap-pellees.
    Rebecca Glasgow and Callie A. Castillo, Deputy Solicitors General; Robert W. Ferguson, Attorney. General; Office of the Attorney General, Olympia, Washington; for Amici Curiae Washington Secretary of State, Washington State Association of Counties, Association of Washington Cities, and Washington Association of County Officials.
    Jennifer M. Perkins; John R. Lopez, IV, Solicitor General; Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Amicus Curiae State of Arizona.
    Before: SIDNEY R. THOMAS, Chief Judge, and WILLIAM A. FLETCHER, RONALD M. GOULD, RICHARD A. PAEZ, MARSHA S. BERZON, RICHARD R. CLIFTON, CONSUELO M. CALLAHAN, MORGAN CHRISTEN, JACQUELINE H. NGUYEN, JOHN B. OWENS, and MICHELLE T. FRIEDLAND, Circuit Judges.
   OPINION

BERZON, Circuit Judge:

The structure of municipal governments and methods of selecting municipal officials vary greatly across the country. Such diversity is a manifestation of our federal structure, which ideally, though not always, “allows local policies ‘more sensitive to the diverse needs of a heterogeneous society,’ permits ‘innovation and experimentation,’ enables greater citizen ‘involvement in democratic processes,’ and makes government ‘more responsive by putting the States in competition for a mobile citizenry.’ ” Bond v. United States, 564 U.S. 211, 221, 131 S.Ct. 2355, 180 L.Ed.2d 269 (2011) (quoting Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 115 L.Ed.2d 410 (1991)). This case requires us to consider the constitutional validity of one municipality’s chosen election system.

Public Integrity Alliance, a nonprofit corporation, and four Tucson voters (collectively referred to as “Public Integrity Alliance”) challenge as unconstitutional the City of Tucson’s system for electing members of its city council. We hold that Tucson’s system does not violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution and so affirm the district court’s order awarding judgment in favor of the City and its co-defendants.

BACKGROUND

I.

Tucson is one of nineteen charter cities in Arizona. City of Tucson v. State, 229 Ariz. 172, 174, 273 P.3d 624 (2012) (en banc). Under Arizona’s constitution, charter cities are municipalities of more than 3,500 people that have elected to “adopt a charter — effectively, a local constitution— for their own government without action by the state legislature.” Id. Charter cities enjoy enhanced autonomy with regard to government structure and the selection of their city officials. See id.; Strode v. Sullivan, 72 Ariz. 360, 368, 236 P.2d 48 (1951).

Since adopting its current city charter in 1929, Tucson has used a “hybrid election system” for electing members to its city council. City of Tucson, 229 Ariz. at 175, 273 P.3d 624; Tucson City Charter, ch. XVI, § 9. Tucson’s city council election system operates as follows: Tucson is divided into six wards of approximately equal populations. Id. ch. XVI, § 8. Each ward is allotted one seat on the six-member city council. Id. ch. Ill, § 1. Council members serve four-year terms and are elected on a staggered basis, with three council members elected every odd-numbered year. Id. ch. XVI, §§ 3, 4. For example, elections for the seats allotted to Wards 1, 2, and 4 were held in 2015, and elections for the seats allotted to Wards 3, 5, and 6 will be held in 2017. A candidate for city council must reside in the ward from which she seeks to be nominated. Id. ch. XVI, § 5.

Council members are elected through a hybrid system involving a ward-level partisan primary election and an at-large partisan general election. First, each ward with a city council seat up for election conducts a partisan primary to select one nominee from each recognized political party. Persons who reside within that ward and are registered with a political party qualified for representation on the ballot may vote in their party’s ward-level primary. Ariz. Rev. Stat. § 16-467(B); Tucson City Charter, ch. XVI, § 9. A person registered as an independent, as having no party preference, or as a member of a party not entitled to representation on the ballot may vote in any one party’s ward-level primary. Ariz. Rev. Stat. § 16-467(B).

The top vote-getter from each party eligible for inclusion on the ward-level primary ballot then advances to an at-large general election, where she competes against the other candidates nominated from the same ward. Every Tucson voter may vote for one candidate from each ward that held a primary — that is, all voters may vote for one candidate for each of the three council member seats appearing on the general election ballot. Tucson City Charter, ch. XVI, § 9. Thus, when city council seats for Wards 1, 2, and 4 were up for election in 2015, residents of Ward 1 were permitted to vote in the primary only for a candidate from Ward 1, but then were permitted to vote for candidates from Wards 1, 2, and 4 in the general election. Once elected, council members represent the entire city. See City of Tucson, 229 Ariz. at 179, 273 P.3d 624.

Tucson’s voters twice have affirmed' their commitment to the system. They rejected a proposal to change from at-large to ward-based general elections in 1991 and disapproved a proposal to change from partisan to non-partisan elections in 1993. Id. at 175, 273 P.3d 624.

Analogous election systems can be found in at least two other states in our circuit. Washington employs a similar system to elect county commissioners in 32 of its 39 counties and has done so for nearly a century. See State v. Bd. of Comm’rs of King Cty., 146 Wash. 449, 463, 263 P. 735 (1928), overruled on other grounds by Lopp v. Peninsula Sch. Dist. No. 401, 90 Wash.2d 754, 585 P.2d 801 (1978) (en banc); Wash. Rev. Code §§ 36.32.040, 36.32.050, 36.32.0556. Several Washington cities, school districts, and special purpose districts also use similar hybrid election systems. See Wash. Rev. Code § 35.18.020 (cities); § 28A.343.660 (school districts); § 53.12.010 (port districts); § 54.12.010 (public utility districts); 52.14.013 (fire protection districts); § 57.12.039 (water-sewer districts). In Nevada, at least two cities, Sparks and Reno, conduct “hybrid,” albeit nonpartisan, city council elections, with the primary election by ward and the general election city-wide. See Reno City Charter, Art. V, §§ 5.010, 5.020; Sparks City Charter, Art. Y, §§ 5.010, 5.020.

II.

Public Integrity Alliance alleges that Tucson’s hybrid system runs afoul of the Equal Protection Clause of the Fourteenth Amendment because it violates the “one person, one vote” principle, relying mainly for their analysis on Gray v. Sanders, 372 U.S. 368, 380-81, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). The core of their argument is that Tucson voters currently are denied the right to participate in primary elections for all but one of their representatives on the city council. Because city council members represent Tucson as a whole, Public Integrity Alliance contends either (1) every Tucson voter must be permitted to vote in each ward’s primary, or (2) Tucson must switch to a purely ward-based system, in which voters for both the primary and general elections for a given council seat are limited to voting for the representative from their own ward and have no voice in selecting candidates from other wards. In other words, Public Integrity Alliance’s position is that an entirely ward-based or entirely at-large system of voting would be permissible, but the combination of the ward-based primary and at-large general is constitutionally fatal.

Public Integrity Alliance filed a. complaint in federal district court seeking to enjoin the operation of Tucson’s hybrid system and secure a declaration that the scheme is unconstitutional. The district court held Tucson’s system constitutional and so denied Public Integrity Alliance’s request for relief.

A divided three-judge panel of this court reversed, holding that by denying out-of-ward voters the ability to vote in the primary elections of other wards, the hybrid system violates the one person, one vote guarantee embedded in the Equal Protection Clause. Pub. Integrity All., Inc. v. City of Tucson, 805 F.3d 876, 883 (9th Cir. 2015). We took the case en banc and now affirm the district court. Tucson’s hybrid voting system for its city council elections does not violate the Equal Protection Clause.

STANDARD OF REVIEW

“[T]he Constitution grants to the States a broad power to prescribe the ‘Times, Places and Manner of holding Elections for Senators and Representatives,’ Art. I, § 4, cl. 1, which power is matched by state control over the election process for state offices.” Tashjian v. Republican Party of Conn., 479 U.S. 208, 217, 107 S.Ct. 544, 93 L.Ed.2d 514 (1986). “This power is not absolute,” however. Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451, 128 S.Ct. 1184, 170 L.Ed.2d 151 (2008). “[V]oting is of the most fundamental significance under our constitutional structure,” Ill. State Bd. of Elections v. Socialist Workers Party, 440 U.S. 173, 184, 99 S.Ct. 983, 59 L.Ed.2d 230 (1979), and state and local government election laws that violate the Constitution are impermissible. See Wash. State Grange, 552 U.S. at 451, 128 S.Ct. 1184; Moore v. Ogilvie, 394 U.S. 814, 818, 89 S.Ct. 1493, 23 L.Ed.2d 1 (1969).

The Supreme Court delineated the appropriate standard of review for laws regulating the right to vote in Burdick v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992). Burdick recognized that governments necessarily “must play an active role in structuring elections,” and “[ejection laws will invariably impose some burden upon individual voters.” Id. at 433, 112 S.Ct. 2059. Consequently, not every voting regulation is subject to strict scrutiny. Id.

Instead, ... a more flexible standard applies. A court considering a challenge to a state election law must weigh “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate” against “the precise interests put forward by the State as justifications for the burden imposed by its rule,” taking into consideration “the extent to which those interests make it necessary to burden the plaintiffs rights.”

Id. at 434 (quoting Anderson v. Celebrezze, 460 U.S. 780, 789, 103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)).

Under Burdick’s, balancing and means-end fit framework, strict scrutiny is appropriate when First or Fourteenth Amendment rights “are subjected to ‘severe’ restrictions.” Id. (quoting Norman v. Reed, 502 U.S. 279, 289, 112 S.Ct. 698, 116 L.Ed.2d 711 (1992)). “But when a state election law provision imposes only ‘reasonable, nondiscriminatory restrictions’ upon the First and Fourteenth Amendment rights of voters, ‘the State’s important regulatory interests are generally sufficient to justify’ the restrictions.” Id. (quoting Anderson, 460 U.S. at 788, 103 S.Ct. 1564).

Applying these precepts, “[w]e have repeatedly upheld as ‘not severe’ restrictions that are generally applicable, evenhanded, politically neutral, and protect the reliability and integrity of the election process.” Dudum v. Arntz, 640 F.3d 1098, 1106 (9th Cir. 2011) (citation and alterations omitted). Our “respect for governmental choices in running elections has particular force where, as here, the challenge is to an electoral system, as opposed to a discrete election rule.” Id. at 1114..

Despite Burdick, the City of Tucson asks that we apply traditional rational basis review, rather than a balancing and means-end fit analysis. Public Integrity Alliance agreed at oral argument that if we rejected its position that primary and general elections must involve identical electorates, traditional rational basis was the appropriate standard of review.

. Our case law has not always accurately described the Burdick test. In Libertarian Party of Washington v. Munro, 31 F.3d 759 (9th Cir. 1994), we stated that where plaintiffs can demonstrate only a “slight” or “de minimis” impairment of their rights, they bear “tibie burden of demonstrating that the regulations they attack have no legitimate rational basis.” Id. at 763. But Burdick calls for neither rational basis review nor burden shifting. See Ariz. Libertarian Party v. Reagan, 798 F.3d 723, 732 n.12 (9th Cir. 2015) (noting the “tension” between Munro and Burdick); id. at 734-36 (McKeown, J., concurring) (same). To the extent Munro prescribed a different standard from the one articulated by the Supreme Court in Burdick, it is now overruled.

DISCUSSION

I.

Public Integrity Alliance argues that Tucson’s hybrid system severely burdens the Fourteenth Amendment by denying Tucson voters the right to vote in the primary elections for five out of six of their representatives on the city council. Central to Public Integrity Alliance’s articulation of the alleged burden is their interpretation of Gray v. Sanders.

According to Public Integrity Alliance, the case before us “is controlled by a single, simple maxim of equal protection” from Gray: “Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote ... wherever their home may be in that geographical unit.” Gray, 372 U.S. at 379, 83 S.Ct. 801. Public Integrity Alliance interprets this language as a requirement that primary and general elections use identical geographical units. Because members of the city council represent the entire city, Public Integrity Alliance reasons, the relevant “geographical unit” is the city as a whole. So, Public Integrity Alliance maintains, Tucson cannot constitutionally designate individual wards as the geographical units for the primary elections and limit participation in a given ward’s primary election to that ward’s residents, and then designate the whole city as the geographical unit for the general election.

Gray establishes no such principle. A vote dilution case, Gray involved a challenge to Georgia’s system of primary elections for statewide officers, a system wholly different from Tucson’s hybrid system of primary and general elections. Instead of counting individual votes, Georgia employed a “county unit system.” 372 U.S. at 370-71, 83 S.Ct. 801. Candidates who received the most votes in a county were considered to have won the county primary and, with respect to the statewide primary, were awarded “county units” in proportion to the number of representatives the county had in Georgia’s lower legislative body. Id. at 371, 83 S.Ct. 801. Georgia’s primary election system was thus similar to the electoral college used to elect our President, with counties’ representation substituted for the state representation in the electoral college. The county units were not proportionate to the county population, giving residents in one county dramatically more influence in the nomination of candidates than residents in another county. Id.

Gray held Georgia’s county unit system violative of the one person, one vote principle, because it diluted the voting power of certain voters based only on where they happened to live. Id. at 379-80, 83 S.Ct. 801. But Gray concerned only the primary election, not a comparison of the geographical units used in the primary and general elections. Gray therefore did not hold that the same geographical unit must apply to both primary and general elections; no issue regarding the relationship between the voting basis in the primary and in the general election was before the Court. And Gray has never been cited for the proposition Public Integrity Alliance puts forward. Instead, Gray has uniformly been construed as an unequal vote weighting case for a single election stage. See Williams v. Rhodes, 393 U.S. 23, 52 n.5, 89 S.Ct. 5, 21 L.Ed.2d 24 (1968) (Stewart J., dissenting)' (Gray “sustained the right of a voter to cast a ballot whose numerical weight is the equal of that of any other vote cast within the jurisdiction in question.”); Fortson v. Morris, 385 U.S. 231, 235, 87 S.Ct. 446, 17 L.Ed.2d 330 (1966) (“The Gray case ... did no more than to require the State to eliminate the county-unit machinery from its election system.”); Lucas v. Forty-Fourth Gen. Assembly, 377 U.S. 713, 744, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964) (Stewart, J., dissenting) (noting that Gray was irrelevant to a case “hav[ing] nothing to do with the ‘weighting’ or ‘diluting’ of votes cast within any electoral unit”). We decline to take a single sentence in a decades-old vote dilution case concerning a single stage of an election, read it without regard to the issue before the Court in that case, and transform it into a new voting rights principle requiring a two-stage election to eover the same geographical base at each stage.

Indisputably, primary elections are state action subject to the same constitutional constraints as general elections. See Smith v. Allwright, 321 U.S. 649, 661-62, 64 S.Ct. 757, 88 L.Ed. 987 (1944); United States v. Classic, 313 U.S. 299, 318-19, 61 S.Ct. 1031, 85 L.Ed. 1368 (1941). And primaries and general elections have an obvious and strong interconnection; that relationship is why the Supreme Court has described them as “a single instrumentality for choice of officers.” Allwright, 321 U.S. at 660, 64 S.Ct. 757. But the recognition that primaries are of great significance to the ultimate choice in a general election and thus directly implicate the right to vote does not mean that primaries and general elections must be identically structured and administered.

In fact, that contention is belied by decades of jurisprudence permitting voting restrictions in primary elections that would be unconstitutional in the general election. See, e.g., Clingman v. Beaver, 544 U.S. 581, 584, 125 S.Ct. 2029, 161 L.Ed.2d 920 (2005) (permitting a semiclosed primary, in which only people who are registered as party members or independents may vote in a party’s primary); Am. Party of Tex. v. White, 415 U.S. 767, 786, 94 S.Ct. 1296, 39 L.Ed.2d 744 (1974) (providing that states may establish waiting periods before voters may be permitted to change their registration and vote in another party’s primary); Ziskis v. Symington, 47 F.3d 1004, 1004-05 (9th Cir. 1995) (holding that a law requiring participants in primaries be registered with a political party did not violate the challenger’s Fourteenth Amendment right to vote). These voting restrictions are constitutionally permissible in primaries because primaries serve a different function than general elections: A primary determines which candidates will compete in the general election, a critical stage and one fully subject in its own right to constitutional scrutiny under Burdick, but a stage as to which the legitimate state interests are not identical with those pertinent to the general election, as the partisan primary cases illustrate.

II.

Having concluded that Gray, does not require that the primary and general elections use identical geographical units, we now apply the Burdick balancing approach, assessing first the burden imposed on Tucson voters by its hybrid system.

All voters in Tucson have an equal right to vote, both during the primary election and during the general election. Each voter may vote for the candidate of her choice in her ward’s primary election. No one may vote in another ward’s primary. And each voter may vote in the general election for one candidate from each ward with a council member position on the ballot.

That the city council elections are staggered is immaterial to the vote denial claim at issue, as Public Integrity Alliance admits in its opening brief. Although half-of Tucson’s residents are unable to vote in a primary in a given election year, that burden quickly evens out over time, as the other half of Tucson’s residents will not be able to vote in a primary in the next election year. Ultimately, every voter has an equal opportunity to vote in their own ward’s primary every four years and in the general election every two years.

As is constitutionally required, then, every voter in Tucson has the same voting power as every other voter in the primary and general city council elections. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 n.78, 93 S.Ct. 1278, 36 L.Ed.2d 16 (1973) (noting that the constitution protects the right “to participate in state elections on an equal basis with other qualified voters whenever the State has adopted.an elective process for determining who will represent any segment of the State’s population”). There is no unequal weighting of votes, no discrimination among voters, and no obstruction or impediment to voting. See Holshouser v. Scott, 335 F.Supp. 928, 933 (M.D.N.C. 1971) (rejecting, in the context of judicial elections, a challenge to a state law providing that judges should be nominated from their respective districts and elected by statewide vote in a general election); Stokes v. Fortson, 234 F.Supp. 575, 578 (N.D. Ga. 1964) (per curiam) (same). The burden on Public Integrity Alliance’s Fourteenth Amendment rights is far from severe. If a burden exists at all, which we doubt, it is at best very minimal.

As to the governmental interest justifying whatever minimal burden may exist, Tucson has asserted that the hybrid system serves to promote local knowledge and legitimacy, geographic diversity, and citywide representation on the city council:

Having nominations through primary elections in each ward, using separate ballots for each party, allows the party electorates in each of those wards to make their own choice of a nominee, and simultaneously acts as a guarantee for the City electorate as a whole that each ward’s nominee actually has support among the party members within that ward. Moreover, since nominees compete in the general election only against other candidates nominated in the same ward, ... ward nominations also help assure that each ward has a local representative on the council, and, conversely, that the Mayor and Council has members who are aware of each ward’s issues, problems, and views.

There is no question that Tucson’s interests are important. The Supreme Court has approved requirements that a city council candidate elected at-large reside in the district with which her seat is affiliated. See Dallas County v. Reese, 421 U.S. 477, 481, 95 S.Ct. 1706, 44 L.Ed.2d 312 (1975) (per curiam) (upholding an election regime providing for countywide balloting for county commission members but requiring that one member reside in and be elected from each district); Dusch v. Davis, 387 U.S. 112, 117, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967) (same). Candidate-residency requirements promote a similar interest to the one Tucson has articulated: ensuring local representation by and geographic diversity among elected officials. By holding ward-based primaries in addition to maintaining a candidate-residency requirement, Tucson is working to ensure that the candidates nominated in a given ward actually have the support of a majority of their party’s voters in that ward, a conclusion that may not always follow from a candidate-residency requirement alone.

Tucson’s hybrid system represents a careful, longstanding choice, twice affirmed by voters, as to how best to achieve a city council with members who represent Tucson as a whole but reflect and understand all of the city’s wards. It is, in other words, the product of our democratic federalism, a system that permits states to serve “as laboratories for experimentation to devise various solutions where the best solution is far from clear.” Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n, — U.S. —, 135 S.Ct. 2652, 2673, 192 L.Ed.2d 704 (2015) (quoting United States v. Lopez, 514 U.S. 549, 581, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995) (Kennedy, J., concurring)).

CONCLUSION

Tucson’s hybrid system for electing members of its city council imposes no constitutionally significant burden on voters’ rights to vote. And Tucson has advanced a valid, sufficiently important interest to justify its choice of electoral system. On the facts alleged herein, the system does not violate the Equal Protection Clause’s one person, one vote commitment.

AFFIRMED.

      . Public Integrity Alliance's complaint also alleged that Tucson's system violates the Equal Privileges and Immunities Clause and the Free and Equal Elections Clause of the Arizona Constitution. Ariz. Const. art. II, §§ 13, 21. Because these state-law claims were not developed in the appellate briefing, we consider them abandoned. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th Cir. 1994).

      . Restrictions that block access to the ballot or impede individual voters or subgroups of voters in exercising their right to vote receive different treatment from rules establishing an overall, generally applicable electoral system. Controversies concerning laws allegedly designed to impede voting are not a historical artifact. See, e.g., Brennan Center for Justice, Voting Restrictions in Place for 2016 Presidential Election (last updated Aug. 10, 2016), http://www.brennancenter.org/sites/default/ files/analysis/New_Restrictions_2016.pdf; U.S. Gov't Accountability Office, GAO-14634, Elections: Issues Related to State Voter Identification Laws 44-56 (2014), http://www.gao. gov/assets/670/665966.pdf. t Under Burdick, courts are to assess the "character and magnitude” of the asserted burden, the proven strength of the state's interest, and whether the extent of the burden is "necessary'’ given the strength of that interest, so as to ferret out and reject unconstitutional restrictions. 504 U.S. at 434, 112 S.Ct. 2059. Recently, in Crawford v. Marion County Election Board, 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008), a majority of the Supreme Court agreed that in so doing, courts may consider not only a given law's impact on the electorate in general, but also its impact on subgroups, for whom the burden, when considered in context, may be more severe. Id. at 199-203, 128 S.Ct. 1610 (plurality opinion) (recognizing that a voter identification law may have disproportionately burdened certain persons, but holding that petitioners' evidence was insufficient to permit the Court to quantify the burden imposed on the subgroup); id. at 212-17, 128 S.Ct. 1610 (Souter, J., dissenting) (disagreeing as to the sufficiency of evidence in the record regarding the burden imposed on subgroups of voters).

      . The Supreme Court later clarified that the unit system violated equal protection not only because it diluted votes, but because aggregating county units rather than individual votes meant that votes for losing candidates were effectively discarded, solely because of the voter’s county residence. See Gordon v. Lance, 403 U.S. 1, 4-5, 91 S.Ct. 1889, 29 L.Ed.2d 273 (1971).

      . We note that no geographically based vote dilution allegation is before us on appeal, nor has minority or other subgroup vote dilution been alleged.


source: Caselaw Access Project

author: IKUTA, Circuit Judge:

license: Public Domain

text:
    IN RE CASTELLINO VILLAS, A. K. F. LLC, Debtor, Picerne Construction Corp., DBA Camelback Construction, Appellant, v. Castellino Villas, A. K. F. LLC, Appellee.
    No. 12-57186
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted February 4, 2015
    Submission Vacated March 13, 2015
    Resubmitted August 29, 2016, Pasadena, California
    Filed September 6, 2016

      See also 244 Cal.App.4th 1201, 199 Cal. Rptr.3d 257.

      Scott E. Hennigh (argued), Meredith A. Jones-McKeown, and Scott A. Vignos, Sheppard Mullin Richter & Hampton LLP, San Francisco, California, for Appellant.
    Beth Ann R. Young (argued), Ron Bender (argued), and Krikor J. Meshefejian; Levene, Neale, Bender, Yoo & Brill LLP, Los Angeles, California, for Appellee.
    Before: MICHAEL J. MELLOY, JAY S. BYBEE, and SANDRA S. IKUTA, Circuit Judges.

       The Honorable Michael J. Melloy, Senior Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.

   OPINION

IKUTA, Circuit Judge:

We are asked to determine whether the bankruptcy court erred as a matter of law by holding that attorneys’ fees incurred during litigation after the confirmation of a Chapter 11 bankruptcy plan were discharged by that bankruptcy. We have jurisdiction under 28 U.S.C. § 158(d). Picerne’s claim for attorneys’ fees arose before Castellino filed its bankruptcy petition, and Castellino’s post-discharge conduct did not amount to “a whole new course of litigation,” Siegel v. Fed. Home Loan Mortg. Corp., 143 F.3d 525, 534 (9th Cir. 1998). Therefore, under the circumstances of this case, Picerne’s attorneys’ fees claim was discharged in Castel-lino’s bankruptcy.

I

Castellino Villas LLC (Castellino) hired Picerne Construction Corp. dba Camel-back Construction (Picerne), a general contractor, to construct a 120-unit apartment complex on Castellino’s property. Pi-cerne and Castellino entered into an agreement for the work that contained an attorneys’ fees provision, which stated, in pertinent part:

Attorneys’ Fees. In any suit, action or proceeding between the parties arising out of, or in connection with, any of the terms, covenants, provisions or' agreements in the Agreement, the prevailing party in such suit ... shall be awarded ... all reasonable attorneys’ fees incurred before any trial or proceeding, at all trials or proceedings and on all appeals.

Castellino defaulted on its obligations and failed to pay Picerne and its subcontractors for their work. In response, Pi-cerne filed a demand for arbitration and a mechanic’s lien against the apartment complex. A few months later, Picerne filed a complaint in California Superior Court to foreclose on the mechanic’s lien. Picerne later amended the complaint to add Castel-lino’s lender, Bank of the West, as a defendant. In response, Bank of the West asserted that its deed of trust on Castellino’s property, which it held as security for Castellino’s $14 million debt to the Bank, was superior to Picerne’s mechanic’s lien.

The court stayed Picerne’s action in May 2007 to permit arbitration in accordance with the contract. On May 11, 2009, the arbitrator issued an award in favor of Pi-cerne. The superior court confirmed the arbitration award on July 24, 2009. That same day, Castellino filed a Chapter 11 petition for bankruptcy. The bankruptcy filing automatically stayed Picerne’s foreclosure action, see 11 U.S.C. § 362(a), but the bankruptcy court granted Picerne’s motion to lift the stay so that the parties could continue to litigate the mechanic’s lien action in state court. Castellino disputed the validity, priority, and amount of Picerne’s lien.

In bankruptcy court, Picerne filed an objection to confirmation of Castellino’s proposed plan of reorganization. In order to obtain confirmation of its plan, Castelli-no entered into a settlement agreement with Picerne. The settlement agreement provided that if Picerne’s foreclosure action in state court resulted in a determination that Picerne’s mechanic’s lien was a “valid, properly perfected and enforceable mechanics lien against the Castellino property” and was senior to the Bank’s lien, Picerne would receive specified payments from the trust account which Castellino would fund. The parties expressly did not agree as to whether Picerne was entitled to interest, costs or attorneys’ fees if it prevailed on its claim; the settlement agreement stated that “Castellino contends that under no circumstance is Pi-cerne entitled to interest, attorneys’ fees or costs” as part of its claim, and “Picerne disputes said contention.” Castellino reserved its defenses relating to the state court litigation. The settlement agreement also provided that upon the court’s approval of the settlement terms, Castellino’s plan of reorganization would be modified to include those terms and Picerne would withdraw its objection to the confirmation of the plan as modified. Finally, the parties entered into mutual releases, agreeing to release “any and all claims, demands, and causes of action ... that exist as of the date of this Agreement or any time prior thereto.”

After a hearing, the bankruptcy court approved the settlement agreement, and confirmed Castellino’s plan of reorganization, as modified to conform to the settlement agreement. As a result, Castellino was discharged from bankruptcy.

Pursuant to the plan and settlement agreement, the parties continued litigating the mechanic’s lien action in state court. After a nine day trial, the state court held that Picerne’s mechanic’s lien was valid and had.priority over the Bank’s lien, and the court entered judgment for Picerne in the amount of some $2.6 million (including prejudgment interest). Picerne moved for an award of attorneys’ fees. The state court held that under the bankruptcy court’s order, it lacked the authority to adjudicate or award attorneys’ fees, so it denied the motion without prejudice. Cas-tellino appealed the decision to the California Court of Appeal.

While the appeal was pending, Picerne moved the bankruptcy court for a ruling that the state court had the authority to award attorneys’ fees. Picerne argued that although it initiated litigation before Cas-tellino filed its petition in bankruptcy, it was entitled to an award of attorneys’ fees that were incurred after the confirmation of Castellino’s plan, citing In re Ybarra, 424 F.3d 1018 (9th Cir. 2005). Picerne also argued that the releases in the settlement agreement and plan of reorganization did not preclude it from seeking post-confirmation attorneys’ fees.

The bankruptcy court denied the motion. It reasoned that when Picerne sued Cas-tellino, the contract between the parties gave Picerne a contingent and unliquidated claim for attorneys’ fees. Because this claim arose before Castellino filed a petition in bankruptcy, it was discharged by the confirmation of Castellino’s plan of reorganization or was released by the parties’ settlement agreement. The district court affirmed, and Picerne timely appealed.

On appeal, Picerne contends that the bankruptcy court erred in denying its motion for post-discharge attorneys’ fees. First, Picerne argues that its claim for attorneys’ fees arising from litigation in state court arose after Castellino filed its petition in bankruptcy and therefore was not discharged by the confirmation of Cas-tellino’s plan of reorganization. Relying on In re Ybarra, Picerne argues that when a newly reorganized debtor voluntarily “returns to the fray” of litigation that began before filing a bankruptcy petition, the debtor is not free from liability for attorneys’ fees incurred after discharge. 424 F.3d at 1023-24. Second, Picerne contends that its settlement agreement with Castel-lino released only “existing claims,” and not claims for attorneys’ fees incurred after the settlement agreement was approved by the court. We review a bankruptcy court’s factual findings for clear error and its conclusions of law de novo. In re Gebhart, 621 F.3d 1206, 1209 (9th Cir. 2010).

II

We first consider when claims for attorneys’ fees are discharged in bankruptcy. The confirmation of a plan of reorganization under Chapter 11 “discharges the debtor from any debt that arose before the date of such confirmation” except as provided in the statute, the plan, or the order confirming the plan. 11 U.S.C. § 1141(d)(1) (emphasis added). “Debt” is liability on a “claim.” 11 U.S.C. §101(12). “Claim” is defined to include a “right to payment, whether or not such right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” 11 U.S.C. § 101(5). A “creditor” is defined to include an “entity that has a claim against the debtor that arose at the time of or before the order for relief concerning the debtor.” 11 U.S.C. § 101(10).

A claim is “contingent” when “the debtor will be called upon to pay [it] only upon the occurrence or happening of an extrinsic event which will trigger the liability of the debtor to the alleged creditor.” In re Fostvedt, 823 F.2d 305, 306 (9th Cir. 1987) (internal quotation marks omitted). A claim is “unliquidated” when it is not “subject to ready determination and precision in computation of the amount due.” Id. (internal quotation marks omitted). “This broadest possible definition of ‘claim’ is designed to ensure that all legal obligations of the debtor, no matter how remote or contingent, will be able to be dealt with in the bankruptcy case.” In re Jensen, 995 F.2d 925, 929 (9th Cir. 1993) (internal quotation marks omitted). “The breadth of the definition of ‘claim’ is critical in effectuating the bankruptcy code’s policy of giving the debtor a ‘fresh start.’ ” Id.

“[F]ederal law determines when a claim arises under the Bankruptcy Code.” In re SNTL Corp., 571 F.3d 826, 839 (9th Cir. 2009). We have recognized that under some circumstances, a creditor may have a claim against a debtor for attorneys’ fees, even though the creditor has not yet incurred those fees. For instance, where the debtor and creditor have entered into a contract that includes an attorneys’ fees agreement, the creditor may be deemed to have a contingent claim for payment of attorneys’ fees even before any fees are incurred. See id. at 843 & n.18 (“[W]hen a creditor’s right to payment for fees exists prepetition [in a Chapter 7 case], the right to payment constitutes a ‘claim,’ within the meaning of § 101(5)(A), albeit an unliquidated, unmatured claim.” (quoting In re New Power Co., 313 B.R. 496, 508 (N.D. Ga. 2004))). Such a contingent claim would then include attorneys’ fees incurred during and after the bankruptcy case. “In general, if the creditor incurs the attorneys’ fees postpetition [in a Chapter 7 case] in connection with exercising or protecting a prepetition claim that included a right to recover attorneys’ fees, the fees will be prepetition in nature, constituting a contingent prepetition obligation that became fixed postpetition when the fees were incurred.” Id. at 844 (quoting 5 Collier on Bankruptcy § 553.03[1][i] (15th ed. Updated 2007)). Said otherwise, when the creditor had a prepetition contingent claim for attorneys’ fees, even attorneys’ fees incurred after that date may be discharged in bankruptcy.

In determining whether a creditor’s claim arose prepetition, we use the “fair contemplation” test. Under this test, “a claim arises when a claimant can fairly or reasonably contemplate the claim’s existence even if a cause of action has not yet accrued under nonbankruptcy law.” Id. at 839; see also In re Jensen, 995 F.2d at 930-31. For instance, in Jensen we held that when a state environmental regulatory agency was aware that the groundwater at the debtors’ site was seriously contaminated before the debtors filed a bankruptcy petition, a contingent claim for cleanup costs was in the “fair contemplation” of the state at the time the debtors filed their Chapter 7 petition. Id. The state’s claim for cleanup costs was therefore discharged in bankruptcy, even though the state incurred nearly a million dollars in cleanup costs after the discharge. Id. Accordingly, if a creditor and debtor are engaged in prepetition litigation pursuant to a contract that includes an attorneys’ fees provision, and the creditor “can fairly or reasonably contemplate” that it will have a claim for attorneys’ fees if an “extrinsic event” occurs (that is, if it prevails in the litigation), then the creditor’s claim for attorneys’ fees will be discharged in the debtor’s bankruptcy even if the creditor incurs attorneys’ fees after the debtor was discharged. See In re SNTL Corp., 571 F.3d at 839; In re Fostvedt, 823 F.2d at 306.

Despite the breadth of this rule, attorneys’ fees incurred by a creditor pursuant to an agreement will not always be in the “fair contemplation” of the parties. See, e.g., Siegel v. Fed. Home Loan Mortg. Corp., 143 F.3d 525; see also In re Ybarra, 424 F.3d 1018. In Siegel, the debtor defaulted on two real estate loans and then filed a bankruptcy petition. 143 F.3d at 527. The lender’s claims were resolved in the bankruptcy, and the debtor received a discharge. Id. But the debtor subsequently brought a lawsuit in state court (later removed to federal court) against the lender, arguing that the lender breached the deed of trust. Id. at 527-28. The district court granted the lender’s motion for summary judgment, and the court awarded the lender attorneys’ fees pursuant to the deed of trust. Id. at 531. We affirmed, rejecting the debtor’s argument that his discharge in bankruptcy included the lender’s claim for attorneys’ fees. Id. at 533. We reasoned that a claim for attorneys’ fees is a contingent claim only where the potential for incurring post-discharge liability was contingent “upon what others might do” and “entirely out of [the debtor’s] hands before he entered bankruptcy.” Id. But where the debtor voluntarily undertook a new course of litigation, which we described as a decision “to return to the fray,” id. at 533, any new liability for attorneys’ fees constituted a post-discharge cost. Id.

We addressed a similar situation in Ybarra. In . that case, a debtor first brought a suit for employment discrimination against her employer in state court. 424 F.3d at 1020. Some eight months later, the debtor filed a Chapter 11 bankruptcy petition, which was subsequently converted to Chapter 7. Id. The trustee for the debt- or’s bankruptcy estate negotiated a settlement agreement with the employer, which was approved by the bankruptcy court. Id. The state court then dismissed the lawsuit. Id. Despite the dismissal of the lawsuit, the debtor took affirmative actions “to revive the state suit.” Id. at 1020, 1027. The debtor claimed her cause of action against the employer constituted exempt property, litigated this issue in bankruptcy court, and (after prevailing on appeal), rejected the settlement agreement and “successfully persuaded the state court to set aside the dismissal.” Id. at 1020. The debtor lost in state court and the employer was awarded attorneys’ fees and costs. Id. at 1020-21 Because the bankruptcy court had previously granted the debtor a discharge, the employer moved the bankruptcy court for leave to enforce the state award of fees and costs. Id. at 1021. The debtor claimed the award was discharged in bankruptcy. Id.

We disagreed. Following Siegel, we noted that “the award of post-petition attorney fees was not discharged” where the debtor returned to the fray by engaging in the “initiation of new litigation” post-petition. Id. at 1023-24 (citing Siegel, 143 F.3d at 534). We concluded that “postpetition attorney fee awards are not discharged where postpetition, the debtor voluntarily pursue[d] a whole new course of litigation, commenced litigation, or returned] to the fray voluntarily.” Id. at 1024 (alterations in original) (internal quotation marks omitted). We therefore rejected the debtor’s argument that the state lawsuit “should be considered continuous litigation, rather than the commencement of a new suit post-petition,” and we instead concluded that the debtor’s “actions to' revive the state suit were sufficiently voluntary and affirmative to be considered ‘returning to the fray.’ ” Id. at 1027; see also In re Sure-Snap Corp., 983 F.2d 1015, 1018-19 (11th Cir. 1993) (holding that when a debtor’s liabilities under an agreement were discharged in bankruptcy, but the debtor challenged the validity of the agreement through a post-discharge appeal “initiated” by the debtor, the debtor can be held liable for attorneys’ fees under the agreement).

The, analysis in these cases is consistent with our fair contemplation test. When parties engage in prepetition litigation that could lead to an award of attorneys’ fees, they may fairly contemplate that the prevailing party will be awarded those fees. Therefore, a creditor’s contingent claim to such fees is discharged in bankruptcy, even if some fees are incurred post-petition. But when the prepetition litigation is resolved in bankruptcy so that any claim (including a contingent claim for attorneys’ fees) against the debtor would be discharged, we cannot say that the debtor’s affirmative action to commence what amounts to “a whole new course of litigation,” Siegel, 143 F.3d at 534, was in the fair contemplation of the parties when the debtor filed a bankruptcy petition. Rather, the debtor’s decision to eschew the fresh start provided by bankruptcy and engage in new litigation is more akin to post-petition conduct that, by definition, was not in the fair contemplation of the parties prepetition. Cf. O’Loghlin v. County of Orange, 229 F.3d 871, 875 (9th Cir. 2000) (holding that a debtor who engages in postpetition illegal discriminatory conduct can be held liable for that conduct, even if claims for similar illegal discriminatory conduct occurring before the bankruptcy were discharged).

III

We now turn to Picerne’s claim for attorneys’ fees related to the state court litigation. Picerne argues it is entitled to attorneys’ fees under an expanded reading of Ybarra and Siegel. According to Picerne, if a debtor continues to litigate a prepetition claim after discharge, and takes any affirmative steps beyond what is necessary to extricate itself from the litigation, the debtor has chosen to “return to the fray,” Siegel, 143 F.3d at 533, and any attorneys’ fees incurred were not discharged. Here, Picerne contends, Castelli-no did more than attempt to extricate itself from the state court litigation: it brought a motion for summary judgment, opposed Picerne’s motion for summary judgment, took party and non-party discovery, and made a request for attorneys’ fees. Therefore, according to Picerne, Castellino engaged in the sort of post-discharge conduct that makes it liable for post-discharge attorneys’ fees.

We disagree. Because Picerne and Cas-tellino had entered into a contract with an attorneys’ fees provision, and Picerne commenced an action under that contract against Castellino in state court before Castellino filed a Chapter 11 bankruptcy petition, Picerne’s contingent claim for attorneys’ fees arose before both the filing of Castellino’s bankruptcy petition and the confirmation of Castellino’s plan. Further, the preconfirmation settlement agreement between Picerne and Castellino required the parties to complete the state court litigation. Under these circumstances, Pi-cerne could fairly and reasonably contemplate that it would incur attorneys’ fees associated with the state court litigation and would have a claim for attorneys’ fees under the agreement if it prevailed.

Contrary to Picerne’s argument, Ybar-ra and Siegel are not implicated here. Unlike the debtors in those cases, Cas-tellino was not relieved of liability under its agreement with Picerne and given a fresh start by its discharge in bankruptcy. Rather, the parties agreed that Pi-cerne’s action against Castellino would continue after discharge. Indeed, in order to obtain Picerne’s agreement to withdraw its objections to the plan of reorganization, Castellino and' Picerne agreed to litigate Picerne’s mechanic’s lien claim to conclusion, and the terms of -the plan of reorganization were conditioned on the results of the litigation. Nor did Castellino “pursue a whole new course of litigation,” Siegel, 143 F.3d at 534, after receiving a discharge. Rather, it merely continued to litigate the single legal action that Picerne had commenced before Castellino filed a petition in bankruptcy. Nothing in the agreement or in the definition of “claim” suggests that Castellino’s efforts to defend itself in the ongoing litigation were outside the fair contemplation of the parties. We decline to adopt Picerne’s expanded reading of Ybarra and Siegel, which is inconsistent with our fair contemplation test. The pertinent question is whether the right to obtain attorneys’ fees in the litigation is within the fair contemplation of the parties, and Picerne provides no reason why it would not have fairly contemplated that the parties would proceed with litigation that had not been resolved in bankruptcy.

We conclude that under the circumstances of this case, Picerne could “fairly or reasonably contemplate” that it would have a claim for attorneys’ fees if it prevailed in the state litigation before Castel-lino filed its petition for bankruptcy. Therefore, the district court correctly determined that the claim was discharged when the bankruptcy court confirmed Cas-tellino’s plan.

AFFIRMED.

        . We vacated submission after hearing oral argument pending the resolution of Castelli-no's appeal of the state trial court’s ruling. The California Court of Appeal affirmed the trial court and held that Picerne had a valid mechanic’s lien that was superior to the Bank's deed of trust. See Picerne Constr. Corp. v. Villas, 244 Cal.App.4th 1201, 199 Cal.Rptr.3d 257 (2016).

      . We do not reach this issue because we conclude that the attorneys’ fees were discharged by Castellino's bankruptcy.

      . Although § 1141(d)(1) provides that a Chapter 11 debtor is generally discharged from any pre-confirmation debts, we have sometimes referred to pre-petition claims in discussing whether claims discharged in a Chapter 11 bankruptcy have subsequently been revived. See, e.g., In re SNTL Corp., 571 F.3d 826, 843-44 (9th Cir. 2009). Other courts have recognized a similar inconsistency. See In re Man-ville Forest Prods. Corp., 209 F.3d 125, 128 n.1 (2d Cir. 2000) (noting “an inconsistency between the wording of the Bankruptcy Code, which discharges debt arising before the confirmation date” and its statement in a prior decision "that the discharged debt must arise before the filing date”). As in Manville Forest, we need not resolve that point here because it is undisputed that the claim at issue arose before Castellino filed its Chapter 11 bankruptcy petition, and therefore the claim necessarily also arose before the confirmation date. For simplicity, we will refer to prepetition claims throughout this opinion.

      . The Bankruptcy Code defines any party with a contingent, unliquidated prepetition claim against the debtor for attorneys’ fees to be a "creditor.” See 11 U.S.C. § 101(10).

      . During the bankruptcy proceedings, Castel-lino disputed that it made a claim for attorneys’ fees, stating that it made a single, mistaken request for attorneys' fees and did not pursue the claim.

      . Because we decide the case on this ground, we need not reach Castellino's argument that Picerne's release of "any and all claims” pursuant to the settlement agreement precluded it from recovering attorneys’ fees.


author: PARKER, Senior Circuit Judge: RAWLINSON, Circuit Judge,

text:
    Marguerite HIKEN; The Military Law Task Force, Plaintiffs-Appellants v. DEPARTMENT OF DEFENSE; United States Central Command, Defendants-Appellees
    No. 13-17073
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 20, 2015 San Francisco, California
    Filed September 6, 2016

      Colleen Flynn (argued), Los Angeles, California; W. Gordon Kaupp, Arce Law Group PC, New York, New York; Chris Ford, Law Office of Chris Ford, Phoenix, Arizona; for Plaintiffs-Appellants.
    Gerard Sinzdak (argued), H. Thomas Byron III, and Dara S. Smith, Civil Division, Department of Justice, Washington, D.C.; for Defendants-Appellees.
    Before: WILLIAM A. FLETCHER, JOHNNIE B. RAWLINSON, and BARRINGTON D. PARKER, Jr.

       The Honorable Barrington D. Parker, Jr., Senior Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.

   Dissent by Judge RAWLINSON

OPINION

PARKER, Senior Circuit Judge:

In February 2012, Plaintiffs-Appellants Marguerite Hiken and the Military Law Task Force (together, “MLTF”) substantially prevailed in a Freedom of Information Act (“FOIA”) action brought against Defendants-Appellees the Department of Defense and United States Central Command (together, the “Government”). In June 2012, MLTF filed a motion for attorney fees pursuant to 5 U.S.C. § 552(a)(4)(E), requesting that the court award it fees consistent with the current billing rates for its attorneys. MLTF submitted evidence relating to the prevailing historical market rate for the pertinent geographic locations and time period, but did not argue for any fees except the current billing rates for its attorneys. Among other things, the Government argued that MLTF was only entitled to fees based on the prevailing market rate, which the Government argued was $200 an hour. The district court (Ware, C.J.) granted the motion in part, awarding MLTF attorney fees calculated at $200 an hour, which was well below the current billing rates for its attorneys.

MLTF moved to alter or amend the judgment. The Magistrate Judge to whom the motion was assigned determined that the district court had erred in failing to consider MLTF’s evidence of the prevailing market rate, and recommended an award higher than that ordered by the district court.

The district court (Rogers, /.), upon the Government’s motion to consider the issue de novo, determined that the first judge had not erred in awarding only $200 an hour. The district court pointed out that MLTF had not argued for any rate except its attorneys’ current billing rate, and thus took the risk that the court would reject the higher billing rate and accept the Government’s proposed billing rate. The district court held that MLTF was not entitled to raise a new argument on its motion to amend the judgment. MLTF appealed. For the reasons set forth, we VACATE the district court’s initial fee award and REMAND the case for further proceedings consistent with this opinion.

BACKGROUND

A. MLTF Successfully Sues the Government Under FOIA

Military Law Task Force is a subcommittee of the National Lawyers Guild that addresses military law issues. Marguerite Hiken is the co-chairperson of MLTF. In March 2005, MLTF made a request pursuant to FOIA, seeking information from the Government relating to an incident in Iraq involving an Italian journalist, and other information relating to the Rules of Engagement in effect during the U.S. military’s involvement in Fallujah, Iraq. The Department of Defense (“DOD”) referred MLTF to United States Central Command (CENTCOM), which in turn acknowledged receipt of MLTF’s request and subsequently denied the request in August 2005. MLTF appealed the denial to DOD. After DOD informed MLTF that it would not be able to complete the appeal process within the time limit set by FOIA, MLTF commenced this action seeking disclosure of the documents.

At the outset of the litigation, DOD contended that it had diligently searched its records and uncovered responsive but confidential documents. At MLTF’s urging, DOD conducted further review and ultimately located an additional number of responsive documents. Redacted versions of those documents were produced to MLTF. In October 2007, the parties cross-moved for summary judgment, and the district court (Patel, J.) denied both motions, ordering certain documents to be submitted to her for in camera review.

Following submission of the additional documents requested by the court, the parties renewed their cross-motions for summary judgment, and in February 2012, the district court granted each motion in part and ordered the Government to turn over certain additional documents. After the case was transferred to then-Chief Judge Ware, the Government moved for ' clarification and partial reconsideration. The . district court granted the motion in part and allowed the Government to withhold certain additional documents.

B. MLTF Seeks Attorney Fees

In June 2012, MLTF moved for attorney fees and costs pursuant to 5 U.S.C. § 552(a)(4)(E). MLTF argued, first, that it had substantially prevailed in the litigation, making it eligible for fees and costs under § 552(a)(4)(E). MLTF also argued that it was entitled to attorney fees because the public interest was benefitted by the disclosure of the documents, MLTF’s interest in the documents was aligned with that public interest, and there was no reasonable basis for the Government’s withholding of the documents.

MLTF proposed the amount of fees pursuant to the “lodestar” method, and argued that the district court should defer to MLTF’s attorneys’ current billing rates and their judgment about the number of' reasonable hours expended. MLTF directed the district court to the declarations of its attorneys describing fees awarded to them in similar circumstances, but only requested that the district court award them fees based on its attorneys’ current billing rates. MLTF requested a fee award of $881,633.99.'

The Government opposed the motion, arguing that although MLTF was eligible for fees, it was not entitled to them because the Government had articulated a reasonable basis for withholding the documents and because MLTF had submitted an unreasonably high fee request. The Government further argued that, even if MLTF was entitled to fees, its award should be substantially lower than requested. The Government argued that the hours billed should be reduced because of MLTF’s limited success on some issues and because the hours billed represented duplicative work. Finally, the Government contended that MLTF’s attorneys were not entitled to their current billing rate, and that MLTF had failed to submit evidence of the reasonableness of their fees. The Government suggested a rate of $200 an hour instead.

C. The District Court Grants MLTF a Portion of the Requested Fees

On August 21, 2012, Judge Ware granted MLTF’s motion in part, awarding $180,520 in fees and $1,059.99 in costs. He held that MLTF was both eligible for, and entitled to, fees and costs, but rejected MLTF’s request for fees based on current billing rates. He observed that “the bulk of the litigation in this case took place between 2006 and 2008,” and thus, he “[did] not look to the attorneys’ current rates, but instead look[ed] to prevailing market rates between 2006 and 2008.” Hiken v. Dep’t of Def., No. C 06-02812 JW, 2012 WL 3686747, at *5 (N.D. Cal. Aug. 21, 2012). He noted that “Plaintiffs fail[ed] to provide evidence of prevailing market rates in this forum during the time period at issue.” Id. He then cited two cases from the Northern District of California, Blackwell v. Foley, 724 F.Supp.2d 1068 (N.D. Cal. 2010), and Pande v. ChevronTexaco Corp., No. C 04-05107 JCS, 2008 WL 906507 (N.D. Cal. Apr. 1, 2008), and determined that, consistent with those decisions, a reasonable rate for all of MLTF’s attorneys was $200 an hour. Judge Ware declined, however, to reduce the number of billable hours, and granted a fee award of $180,520.

D. MLTF Moves to Amend the Judgment

In September 2012, MLTF moved pursuant to Rule 59(e) to amend the judgment on the ground that the district court had improperly calculated the fee award. MLTF argued that, contrary to the district court’s opinion, it had submitted evidence of the prevailing market rates from 2006 and 2008, and that the court’s calculation had resulted in an unreasonably low award. The Government argued that the district court had properly considered historical rates in arriving at the hourly rate, and that the total award was more than reasonable because MLTF had been compensated for all of its billed hours, despite being only partially successful in the litigation.

The motion was referred to a magistrate judge (Westmore, J.), who recommended that MLTF’s motion be granted because MLTF had, in fact, submitted declarations showing the prevailing market rates during the applicable period, and thus the district court’s finding to the contrary was clear error. Finding that MLTF had submitted adequate evidence, Judge West-more undertook her own examination of the prevailing rates and determined that an appropriate fee award would be $257,776.50. She supported her.recommendation by creating a chart showing the appropriate billing rate for each attorney during the relevant periods.

The Government moved for the district court to consider MLTF’s motion de novo. Judge Rogers, newly assigned to the case, largely rejected the Magistrate’s recommendation and held that Judge Ware had properly assigned a rate of $200 an hour. Without passing on' the sufficiency of MLTF’s evidence, Judge Rogers noted that although MLTF had submitted declarations attesting to the historical billing rates, it “did not actually argue in the Fee Motion for any rates other than their current billing rates, nor did [it] provide any analysis on what reasonable historical rates would have been for each of the attorneys during the time worked.” Hiken v. Dep’t of Def., No. 06-cv-02812-YGR, 2013 WL 4496336, at *4 (N.D. Cal. Aug. 19, 2013). She went on to hold that Judge Ware had not committed plain error in finding that “Plaintiffs fail[ed] to provide evidence of the prevailing market rates,” because such a statement “does not compel the conclusion that he did not consider the scant evidence now highlighted by Plaintiffs, especially in light of the parties’ arguments in the Fee Motion briefing.” Id. at *6. Judge Rogers concluded that Judge Ware’s fee award was not the result of manifest injustice or clear error, and consequently denied MLTF’s motion to amend the judgment.

MLTF filed this appeal, purporting to appeal:

Order Granting Defendants; Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge; Adopting in Part Report and Recommendations That Plaintiffs; Motion to Alter or Amend the Judgment be Granted; and Denying Plaintiffs’ Motion to Alter or Amend Judgment Per. Fed. Rule of Civ. Pro. 59(e), Dkt. No. 145, entered in this action on August 19, 2013.

ER 94. The Notice of Appeal did not mention the underlying fee award.

STANDARD OF REVIEW

A district court’s award of attorney fees under FOIA is reviewed for abuse of discretion, with de novo review being afforded to questions of law. Or. Nat. Desert Ass’n v. Locke, 572 F.3d 610, 613-14 (9th Cir. 2009). A district court’s denial of a Rule 59(e) motion to amend judgment is similarly reviewed for abuse of discretion. Int’l Rehab. Scis. Inc. v. Sebelius, 688 F.3d 994, 1000 (9th Cir. 2012).

DISCUSSION

I. Review of the Underlying Fee Award

Before engaging the merits of this appeal, we must first determine the precise issue which is being appealed. MLTF has only noticed for appeal Judge Rogers’s denial of its motion to amend judgment. This sets a high bar for MLTF. A motion to amend judgment may only be granted where: “1) the motion is ‘necessary to correct manifest errors of law or fact upon which the judgment is based;’ 2) the moving party presents ‘newly discovered or previously unavailable evidence,’ 3) the motion is necessary to ‘prevent manifest injustice,’ or 4) there is an ‘intervening change in controlling law.’” Turner v. Burlington N. Santa Fe R.R. Co., 338 F.3d 1058, 1063 (9th Cir. 2003) (quoting McDowell v. Calderon, 197 F.3d 1253, 1254 n.1 (9th Cir. 1999)). By contrast, we may reverse a district court’s underlying fee award upon a finding that the court abused its discretion by committing an error of law, whether manifest or not.

The import of MLTF’s deficient notice of appeal is apparent to the parties. The Government points out that MLTF failed to notice the underlying fee award, and argues that there is no basis to review that earlier order. MLTF, perhaps realizing its error only after it was pointed out by the Government, argues in its reply brief that this Court has discretion to review the underlying award, notwithstanding MLTF’s procedural error.

MLTF’s notice of appeal is plainly deficient. But MLTF is correct that our review is nonetheless properly directed at Judge Ware’s underlying fee award, and not at the subsequent order denying MLTF’s motion to amend judgment. We allow a party to argue the merits of an order not appearing on the face of an appeal after considering: “(1) whether the ‘intent to appeal a specific judgment can be fairly inferred’ and (2) whether ‘the appellee [was] prejudiced by the mistake.’ ” Lolli v. County of Orange, 351 F.3d 410, 414 (9th Cir. 2003) (alteration in original) (quoting Montes v. United States, 37 F.3d 1347, 1351 (9th Cir. 1994)). Intent to appeal the underlying order may be inferred where only the denial of a motion for reconsideration appears on the face of the appeal. Id. (citing United States v. Belgarde, 300 F.3d 1177, 1180 (9th Cir. 2002); McCarthy v. Mayo, 827 F.2d 1310, 1313-14 (9th Cir. 1987)).

In Lolli, the notice of appeal only mentioned the denial of the motion for reconsideration of an adverse summary judgment order, and did not specify an intention to appeal the summary judgment order itself. 351 F.3d at 414. We nonetheless reviewed the summary judgment order directly because the appellant’s “intent to appeal the summary judgment order can be inferred, as we frequently have ddne when a party appeals after its motion for reconsideration was denied.” Id. We went on to hold there was no prejudice to the defendants where the appellant had provided a “full discussion” of the summary judgment order in its opening brief, and the defendants had provided a “detailed response” in their answering brief. Id. at 414-15.

This case fits comfortably within those principles. Notwithstanding MLTF’s failure to designate for appeal Judge Ware’s underlying fee order, MLTF’s intent to appeal the underlying fee award is apparent from both the factual circumstances and MLTF’s extensive briefing on the issue. The Government also cannot demonstrate prejudice. It had, and took advantage of, an opportunity to argue the merits of the underlying award in its opposition brief. Although the dissent is “not persuaded that the ‘fair inference’ of an intent to appeal should be so facilely bestowed upon Appellants who have failed to comply with the rules of appellate procedure,” Dissenting Op. at 1047, it does not contest that MLTF meets both elements of the test we articulated in Lolli. Accordingly, we choose to exercise our discretion and consider in this appeal the merits of Judge Ware’s underlying fee award.

II. The Underlying Fee Award

A. Applicable Law

A party seeking attorney fees in a FOIA action must show that it is both eligible for, and entitled to, such fees. Church of Scientology v. U.S. Postal Servs., 700 F.2d 486, 489 (9th Cir. 1983). A party, is eligible for attorney fees if it “substantially prevailed” in the litigation. Id. (quoting 5 U.S.C. § 552(a)(4)(E)). If a party is eligible for attorney fees, the determination of entitlement is within the sound discretion of the trial court. Id. at 492. In exercising such discretion, the district court must consider: “(1) the public benefit from disclosure, (2) any commercial benefit to the plaintiff resulting from disclosure, (3) the nature of the plaintiffs interest in the disclosed records, and (4) whether the government’s withholding of the records had a reasonable basis in law.” Long v. IRS, 932 F.2d 1309, 1313 (9th Cir. 1991).

The “customary method” for awarding fees is the lodestar method, which is performed by multiplying the number of hours reasonably expended by the prevailing party in the litigation by a “reasonable hourly rate.” Morales v. City of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996). There is a “strong presumption” that the lodestar figure represents a reasonable award, and the figure should only be departed from “if certain factors relating to the nature and difficulty of the case overcome this strong presumption and indicate that such an adjustment is necessary.” Long, 932 F.2d at 1314 (internal quotation marks omitted).

The district court must “provide a ... detailed account of how it arrives at appropriate figures for ‘the number of hours reasonably expended’ and ‘a reasonable hourly rate.’ ” Hall v. Bolger, 768 F.2d 1148, 1151 (9th Cir. 1985) (quoting Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984)). Though the district court generally possesses a “superior understanding of the litigation,” “[i]t remains important ... for the district court to provide a concise but clear explanation of its reasons for the fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). To determine a “reasonable hourly rate,” the district court should consider: “experience, reputation, and ability of the attorney; the outcome of the results of the proceedings; the customary fees; and the novelty or the difficulty of the question presented.” Chalmers v. City of Los Angeles, 796 F.2d 1205, 1211 (9th Cir. 1986) (citing Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975)). The reasonable rate should generally be guided by “the rate prevailing in the community for similar work performed by attorneys of comparable skill, experience, and reputation.” Id. at 1210-11 (citing Blum, 465 U.S. at 895 n.11, 104 S.Ct. 1541 (1984)).

The burden is on the fee applicant to produce evidence “that the requested rates are in line with those prevailing in the community.” Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 980 (9th Cir. 2008) (internal quotation marks omitted) (quoting Blum, 465 U.S. at 895 n.11, 104 S.Ct. 1541). In general, “[a]ffida-vits of the plaintiffs’ attorney and other attorneys regarding prevailing fees in the community, and rate determinations in other cases, particularly those setting a rate for the plaintiffs’ attorney, are satisfactory evidence of the prevailing market rate.” United Steelworkers of Am. v. Phelps Dodge Corp., 896 F.2d 403, 407 (9th Cir. 1990).

The resulting lodestar figure is "pre-sumed to be [a] reasonable fee.” Blum, 465 U.S. at 897, 104 S.Ct. 1541. The district court may nonetheless consider other factors in determining whether to. adjust the fee award upward or downward. Chalmers, 796 F.2d at 1212. However, the district court should explain why the adjustment was appropriate. Hall, 768 F.2d at 1151.

B. Calculation of the Reasonable Rate

Consistent with its burden, MLTF provided substantial evidence of the prevailing market rate for the applicable periods. In addition to affidavits from each of the attorneys attesting to the reasonableness of their rates, MLTF also supported its application by reference to comparable fee awards, including:

• A 2009 fee award for $350 an hour to Colleen Flynn;
• A 2011 fee award for $500 an hour to a 2001 law graduate;
• A 2008 fee award for $695 an hour to a 1978 law graduate;
• A 2010 fee award for $675 an hour to a 1995 law graduate;
• A 2010 fee award for $440 an hour to a 2008 law graduate.

Despite the evidence provided by MLTF, the court below chose instead to rely on two district court opinions, Blackwell v. Foley, 724 F.Supp.2d 1068 (N.D. Cal. 2010), and Pande v. ChevronTexaco Corp., No. C 04-05107 JCS, 2008 WL 906507 (N.D. Cal. Apr. 1, 2008), in determining the prevailing market rate. This authority was not apposite. In Blackwell, the court was considering the prevailing market rate for a 2002 graduate performing legal work in 2007 and 2008. 724 F.Supp.2d at 1082. And in Pande, the court was considering the prevailing market rate for a 2004 graduate performing legal work in 2007. 2008 WL 906507, at *5.

In justification of the rates that it found reasonable, the court below said that “Plaintiffs fail to provide evidence of prevailing market rates in this forum during the time period at issue.” Hiken, 2012 WL 3686747, at *5. In view of the evidence in the record discussed above regarding MLTF’s rates, we cannot agree with this ' conclusion. As 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.” Hensley, 461 U.S. at 437, 103 S.Ct. 1933.

The Government argued below that the court had, in fact, reviewed and considered the evidence of prevailing historical rates in the community, but “simply concluded that [those] declarations did not provide sufficient evidence of the prevailing rates.” Defendants’ Motion for De Novo Determination of Dispositive Matter Referred to Magistrate Judge at 6, Hiken, 2013 WL 4496336, (No. 06-cv-02812-YGR), ECF No. 140. The Government, however, appears to have shifted its approach on appeal, arguing instead, as the district court held, that MLTF forfeited its opportunity to argue for historical rates by only advocating in its brief for current rates. We cannot accept this argument.

We have articulated the burden for each side in a fee application: “[T]he burden is on the fee applicant to produce satisfactory evidence ... that the requested rates are in line with those prevailing in the community.” Camacho, 523 F.3d at 980. Conversely, “[t]he party opposing the fee application has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits.” Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992). The Government asks us to impose an additional limitation on fee applicants: namely, that they are foreclosed from pointing out a misapplication of a historical rate calculation if they only requested current rates in an initial application. We do not believe that such an additional burden would be warranted. From time to time, fee applicants request awards higher than that which the evidence may, upon close review by a neutral judge, fairly permit. But 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 cases cited by the Government only stand for the obvious proposition that a court is not required to “manufacture arguments” on behalf of litigants. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003); Wilson v. Gray, 345 F.2d 282, 290 (9th Cir. 1965); see also United States v. Anekwu, 695 F.3d 967, 985 (9th Cir. 2012). Contrary to the dissent’s insistence, none of these cases,suggests that a district court reviewing a fee application is relieved of its obligation to calculate a reasonable rate based on record evidence of prevailing historical rates' merely because the applicant has argued for a current rate higher than the district court chooses to allow.

To be sure, MLTF might have been more careful to alert the district court of the substantial evidence of prevailing historical rates in the declarations, but there is no question here that the evidence was properly submitted to the district court. Furthermore, the fact that MLTF cited to the relevant declarations in its moving papers is not consistent with the Government’s position that the pertinent evidence was buried in an impenetrable record. Accordingly, we vacate the district court’s fee award and remand for a recalculation of the appropriate rate.

Because we vacate and remand the district court’s initial award of fees, MLTF’s appeal from the district court’s denial of its motion to amend the judgment is now moot. See Zimmerman v. City of Oakland, 255 F.3d 734, 740 (9th Cir. 2001).

III. Fees for Services Rendered on Appeal

MLTF requests that we award it costs and attorney fees expended in making this appeal. As a general rule, a party entitled to attorney fees as a matter of statute is similarly entitled to fees accumulated in “establishing and negotiating his rightful claim to the fee.” Se. Legal Def. Grp. v. Adams, 657 F.2d 1118, 1126 (9th Cir. 1981) (internal quotation marks omitted) (quoting Lund v. Affleck, 587 F.2d 75, 77 (1st Cir. 1978)).

The Government argues that any request for fees related to this appeal is premature because even if we vacate and remand, the district court may still, after review of the evidence and exercise of its discretion, award the same sum. We disagree. In United Steelworkers, we vacated and remanded a fee award, instructing the district court to recalculate the appropriate fee. 896 F.2d at 407-08. In doing so, we noted that plaintiffs were nonetheless entitled to fees for the time spent on the appeal. Id. at 408. The Government has not challenged, on this appeal, MLTF’s eligibility for and entitlement to attorney fees. Thus, there is no question that MLTF falls within the class of litigants entitled to attorney fees on appeal, and MLTF may request attorney fees on appeal in accordance with Ninth Circuit Rule 39-1.6.

CONCLUSION

The fee award of the district court is VACATED, and the matter is REMANDED for recalculation of attorney fees in a manner consistent with this opinion.

RAWLINSON, Circuit Judge,

dissenting:

I respectfully dissent for two reasons: 1) Military Law Task Force (Task Force) failed to appeal the district court’s fee award; and 2) the district court acted within its discretion in calculating the fee award.

1. Task Force failed to appeal the district court’s fee award.

As the majority candidly acknowledges, the “notice of appeal is plainly deficient.” Majority Opinion, p. 1043. Specifically, Task Force’s notice of appeal contained absolutely no mention of the underlying fee award. Rather, it referenced only the district court’s denial of the motion for reconsideration.

The majority relies upon the case of Lolli v. County of Orange, 351 F.3d 410 (9th Cir. 2003) and the eases cited in Lolli. See Majority Opinion, p. 1043. However, a closer reading of the cases cited in Lolli reveals the existence of factual circumstances that are not present in this case.

In United States v. Belgarde, 300 F.3d 1177, 1180 (9th Cir. 2002), we expressed our belief that “all parties understood that the government was appealing the dismissal of the Indictment following denial of a motion to reconsider.” No such understanding existed in this case.

In McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987), we observed that “[i]n denying [the] post-judgment motion, the district court incorporated the prior order ...” No similar incorporation of the prior order accompanied the district court’s denial of Task Force’s motion for reconsideration.

I am not persuaded that the “fair inference” of an intent to appeal should be so facilely bestowed upon Appellants who have failed to comply with the rules of appellate procedure. I would hold that Task Force failed to appeal the underlying fee award.

As the majority acknowledges, Task Force argued only for fees based on the current billing rates for its attorneys. Task Force made absolutely no argument for fees predicated upon prevailing historic market rates for the pertinent geographical area and time period. See Majority Opinion, pp. 1039-40. Yet, the majority essentially holds that it was incumbent upon the district court judge to award fees based upon an argument that was never made by Task Force. See id. at 1045^16.

Until today, we had not required a district court to rule on an argument that was never presented. Indeed, our precedent is to the contrary. Wé have consistently ruled that a party forfeits any argument not made to the district court. See United States v. Anekwu, 695 F.3d 967, 985 (9th Cir. 2012) (“[A]n appellant waives arguments by failing to raise them in the district court ...”) (citation omitted); see also Li v. Kerry, 710 F.3d 995, 1000 n.4 (9th Cir. 2013).

2. The district court acted within its discretion in calculating the fee award.

Our review of the reasonableness of an attorney fee award is for an abuse of discretion. See United States v. $28,000.00 in U.S. Currency, 802 F.3d 1100, 1104 (9th Cir. 2015).

The majority points to the inclusion of a declaration of Carol Sobel setting forth fee awards in various court cases in the Los Angeles area. See Majority Opinion, pp. 1045-46. However, the majority’s reliance on these fee awards is problematic for two reasons: 1) the data provided was proffered for the purpose of supporting Task Force’s request for an award of its current billing rates, and 2) the district court was not required to accept the proffered rates as controlling.

Notably, Task Force never argued that the rates set forth in the Sobel declaration established prevailing market rates for 2006 to 2008. Rather, Task Force relied on the rates in the declaration as support for an award of its current rates, particularly since the rates in the declaration encompassed 2008-2011, as opposed to the pertinent years of 2006-2008.

More importantly, the district court was not required to accept these rates as prevailing market rates for 2006-2008, not only because the rates were for different years, but also for different types of cases. Not one of the referenced cases arose under the Freedom of Information Act, as does this case. Rather, the rates cited were awarded in “a recent large class-action First Amendment case,” “a consumer class action,” and civil rights litigation. Absent 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. See Welch v. Metropolitan Life Ins. Co., 480 F.3d 942, 946 (9th Cir. 2007) (“[Bjilling rates should be established by reference to the fees that private attorneys of an ability and reputation comparable to that of prevailing counsel charge their paying clients for legal work of similar complexity.”) (citations omitted).

In summary, because 'Task Force did not appeal the underlying fee award, and because the district court acted within its discretion in determining the appropriate fee award, I would affirm.

      . A partial impetus for the district court’s order was that certain documents were no longer properly classified as confidential because the U.S. government had declared an end to Operation Iraqi Freedom.

      . MLTF's appeal remains timely. While MLTF would ordinarily have thirty days from entry of the fee award to appeal, if a motion to amend judgment is filed, the thirty days does riot begin to run until the motion is decided. Fed. R. App. P. 4(a)(4).

      . Here, MLTF sought fees for attorneys graduating in 2002, 2004, 2005, and 2006. The dissent faults our reasoning because “[n]ot one of the referenced cases arose under the Freedom of Information Act, as does this case.” Dissenting Op. at 1048. The same is true, however, of each of the cases relied upon by the district court.

      . We note that the Magistrate’s fee calculation, while not controlling on remand, may serve as an appropriate roadmap for the district court. The resulting fee award, upon full briefing by both parties, may be greater or less than the recommended award from the Magistrate.

      . MLTF has also requested fees related to its motion to amend judgment below. We leave the award and calculation of those fees to the sound discretion of the district court.

      . The majority opinion completely ignores the holding of these cases and permits Task Force to appeal on a basis that was never presented to the district court.

      . The majority seeks to minimize this discrepancy by pointing to the cases relied on by the district court. See Majority Opinion, p. 1045 n.3. However, if non-Freedom of Information Act cases do not support the district court's decision, they do not become magically more persuasive because they are cited by the majority.