- 39 -
III.B.2.a.).26 We hesitate, however, to disregard completely
Izen’s concern that the test cases were insufficiently
representative. Accordingly, we shall defer to Izen’s
professional judgment in that regard--up to a point. When the
Court of Appeals stayed the proceedings in the interlocutory
appeals of the other participating nontest case petitioners on
May 10, 2001, pending resolution of the test case appeal, it
effectively determined that the interests of those nontest case
petitioners were adequately represented in the test case appeal.
That determination belies any continued justification for Izen’s
efforts that could counteract Hensley’s limited success factor.
We therefore disallow 75.84 hours Izen incurred after May 10,
2001, that relate to “intervention”, including 10.92 hours
relating to Jones’s July 2002 motion to intervene.27 See infra
Part III.D.2.c.
26 We do not mean to suggest that Hensley requires courts to
“scalpel out attorney’s fees for every setback” suffered by a
prevailing party. Cabrales v. County of Los Angeles, 935 F.2d
1050, 1053 (9th Cir. 1991). However, we fail to see how Izen’s
intervention efforts “[contributed] to the ultimate victory in
the lawsuit.” Id. at 1052.
27 Izen’s first time entry after May 10, 2001, relating to
intervention is dated June 2, 2001. Given the extent of
communications between Izen, Jones, and Sticht, we presume that
Izen was aware of the Court of Appeals’ May 10, 2001 order by
that time.
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