Opinion
No. CIV. S-05-1633 FCD KJM.
August 11, 2006
MEMORANDUM AND ORDER
This matter comes before the court on plaintiffs Californians for Alternatives to Toxics, Wilderness Watch, Laurel Ames, and Ann McCampbell's (collectively, "plaintiffs") motion for attorney fees, costs, and other expenses, under the Equal Access to Justice Act ("EAJA"), they incurred with respect to a civil action against defendants Jack Troyer, the USDA Forest Service and Gary Schiff (collectively, "defendants"). Specifically, plaintiffs seek an award of $99,420.00 in attorney fees and $13,693.00 in costs, for a total award of $113,113.00. Defendants oppose plaintiffs' motion on the ground that defendants' position was substantially justified and thus, in accordance with the EAJA's limitations on recovery, no fees should be awarded. Alternatively, defendants argue that if any fees, costs and other expenses are awarded to plaintiffs, the court should significantly reduce the amount plaintiffs request, awarding no more than $26,359.27 for attorneys fees and costs.
For the reasons set forth below, plaintiffs' motion is GRANTED in part, as the court finds plaintiffs entitled to an award of fees and costs, and DENIED in part, with respect to the amount plaintiffs seek to recover. In that regard, the court awards plaintiffs $78,402.50 in attorney fees and $12,943.00 in costs, for a total award of $91,345.50.
Because oral argument will not be of material assistance, the court orders this matter submitted on the briefs. E.D. Cal. L.R. 78-230(h).
BACKGROUND
On April 30, 2004, defendant USDA Forest Service (the "Service") issued a Finding of No Significant Impact ("FONSI") under the National Environmental Protection Act ("NEPA"), indicating that it would not prepare an Environmental Impact Statement ("EIS") and approving the Silver King Creek Paiute Cutthroat Trout Recovery Project (the "Project"). The Project authorized the California Department of Fish and Game ("CDFG") to apply the pesticide rotenone to certain areas of Silver King Creek and Tamarack Lake in the Carson-Iceberg Wilderness in California. (Pls.' Compl., filed August 15, 2005, ¶ 28.)
Subsequently, on August 15, 2005, plaintiffs brought suit against defendants, alleging the Service violated NEPA and the Administrative Procedure Act ("APA") by failing to prepare an EIS and/or prepare an adequate Environmental Assessment ("EA") for the Project. (Pls.' Compl. at ¶¶ 59-79.) On August 23, 2005, the court issued a temporary restraining order ("TRO") and, shortly thereafter, a preliminary injunction ("PI") enjoining the Project. (Am. Mem. Order, filed September 1, 2005, at 3:5-7.) The court held that the balance of hardships both parties would incur if the Project were implemented tipped in favor of plaintiffs, and plaintiffs sufficiently raised "serious questions" as to the merits of their NEPA claims. (Id.) Ultimately, the CDFG cancelled the Project "indefinitely." (Defs.' Mot. to Dismiss, filed Nov. 4, 2005, Ex. A.) Additionally, the Service withdrew its Decision Notice authorizing the CDFG to apply rotenone. (Id. at Ex. C.)
Hereinafter, all references to "Am. Mem. Order" refer to the court's order on the motion for a PI, filed September 1, 2005.
On November 4, 2005, defendants filed a motion to dismiss plaintiffs' complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that plaintiffs' action had become legally moot as there was "`no reasonable expectation . . . that the alleged violation' would recur.'" (Dfs.' Mot. to Dismiss at 7:3-6, quoting City of Los Angeles v. Davis, 440 U.S. 625, 631 (1979).) The court granted defendants' motion, as defendants satisfied their burden of establishing the unlikelihood that the alleged violation would recur, and defendants voluntarily ceased implementation of the Project such that plaintiffs were no longer harmed. (Mem. Order, filed February 27, 2006, at 10:5-7, 11:27-28, 12:1-2.)
Plaintiffs now seek to recover attorney fees, costs and other expenses under the EAJA for all four stages of litigation in this action, the motion for a TRO, the motion for a PI, the motion to dismiss, and this motion for fees.
STANDARD
Under the EAJA, a court "shall award" attorney fees, costs and other expenses to a "prevailing party" in a civil action "brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).
In the absence of a statutory definition, a plaintiff is a "prevailing party" for purposes of the EAJA if he or she "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." See United States v. Real Property Known as 22249 Dolorosa Street, 190 F.3d 977, 981 (9th Cir. 1999) (internal citations and quotation marks omitted). Specifically, where a plaintiff is granted a preliminary injunction, he or she is a prevailing party under the EAJA despite the "subsequent mooting" of his or her case. See Watson v. County of Riverside, 300 F.3d 1092, 1096-97 (9th Cir. 2002).
However, a plaintiff is not entitled to attorney fees, costs and other expenses in a civil action against the United States, despite satisfying the "prevailing party" test, if the government, bearing the burden of proof, demonstrates that its position "was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A);see Barry v. Bowen, 825 F.2d 1324, 1330 (9th Cir. 1988).
ANALYSIS I. Prevailing Parties
The court is required to treat a party succeeding on a claim for a PI as a "prevailing party" for EAJA purposes where the PI satisfied a primary purpose of the lawsuit. Watson, 300 F.3d at 1096. Here, plaintiffs sought to stop defendants from implementing the Project until, minimally, defendants prepared an EIS in compliance with NEPA. (Pls.' Mot. for Att. Fees, filed May 19, 2006, at 2:3-5; Pls.' Compl. at 19:3-4.) The court subsequently issued a TRO and a PI, enjoining defendants from executing the Project. (Pls.' Mot. for Att. Fees at 2:4-14). Indeed, as a result of the court's decision to issue the PI, the Project was permanently halted — the plaintiffs' precise objective in bringing suit against defendants. (Id. at 2:27-28, 3:1.) Consequently, plaintiffs are the prevailing party under the EAJA. Further, the court notes that defendants did not contest this issue, and thus, apparently concede that plaintiffs are the prevailing parties for purposes of the EAJA. (Dfs.' Opp'n, filed June 20, 2006.)
II. Substantial Justification of the Underlying Action and Litigation Position
Even if a party prevails in a civil action against the United States, as required by the EAJA for recovery, the government may nonetheless escape liability for attorney fees, costs and other expenses incurred by the prevailing party if its position is "justified to a degree that could satisfy a reasonable person" both in law and fact. Pierce v. Underwood, 487 U.S. 552, 565 (1988); Bowen, 825 F.2d at 1330. The Ninth Circuit has specifically rejected the argument that the EAJA's 1985 legislative history implicated a more stringent standard of justification than reasonableness. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988). The Ninth Circuit applies the "totality of circumstances" test, requiring that the court conduct a two-part inquiry in determining whether the government's position was substantially justified. League of Women Voters v. FCC, 798 F.2d 1255, 1258 (9th Cir. 1986). The court must review both the government's litigation position and underlying government action at issue for reasonableness. Id.Importantly, "that the government lost [on a claim] does not raise a presumption that its position was not substantially justified." Oregon Environmental Council v. Kunzmam, 817 F.2d 484, 498 (9th Cir. 1987) (citing In re Hill, 775 F.2d 1037, 1040 (9th Cir. 1985)). Furthermore, the Ninth Circuit has refused to automatically deem the government unjustified simply because its underlying action was unreasonable. United States v. Marholf, 277 F.3d 1156, 1164 n. 5 (9th Cir. 2002).
Plaintiffs first argue that defendants' underlying action was unreasonable, as defendant Service violated NEPA by preparing an EA but failing to prepare an EIS. (Pls.' Mot. at 4:19-28, 5:8-11.) NEPA permits an agency to prepare an EA 1) if an EIS is not required or 2) to determine whether to prepare an EIS.Foundation for North American Wild Sheep v. U.S. Dep't of Agriculture, 681 F.2d 1172, 1178 (9th Cir. 1982). However, an agency must prepare an EIS where "substantial questions are raised whether a project may have a significant effect upon the human environment. . . ." Id. (quoting City County of San Francisco v. United States, 615 F.2d 498, 500 (9th Cir. 1980)).
In that regard, the Ninth Circuit has held that an agency's preparation of only an EA and a programmatic environmental impact statement ("PEIS") are unreasonable agency actions, for EAJA purposes, if neither analysis "provides the information `necessary reasonably to enable the decision-maker to consider the environmental factors and to make a reasoned decision.'"Oregon Environmental Council v. Kunzman, 714 F.2d 901, 904 (9th Cir. 1983) (quoting Westside Property Owners v. Schlesinger, 597 F.2d 1214, 1217 (9th Cir. 1979)). In the first phase of litigation in Kunzman, the plaintiffs brought suit against the defendants, including the U.S. Secretary of Agriculture, seeking a PI to stop the defendants from authorizing or implementing a program where a chemical insecticide would be sprayed in an Oregon residential area. Kunzman, 714 F.2d at 901. The Ninth Circuit, in reversing the district court's ruling that the defendants had not violated NEPA, noted that neither the EA or PEIS addressed the program's effects upon the residential population in the region, nor did they consider the "carcinogenic effects" of the chemical's by-product. Id. at 904-905. Consequently, the district court determined that the government's position was not substantially justified, as its pre-litigation actions were "unreasonable," under the EAJA, and it never admitted to the PEIS and EA's deficiency. Oregon Environmental Council v. Kunzman, 1984 U.S. Dist. LEXIS 24481 *4 (D. Ore. 1984).
Similarly here, in granting a PI to plaintiffs, the court noted that plaintiffs raised a "serious question as to whether plaintiffs' experts' comments and objections on the EA . . . were adequately addressed by the [Forest] Service" such that a "controversy existed sufficient to trigger an EIS." (Am. Mem. Order at 7:26-27, 8:1-6.) Additionally, the court found that plaintiffs successfully raised a substantial question "since the Project's inception" as to whether there was "a high probability that rare and endemic species live[d] in the Project area" that might effect the human environment, to warrant an EIS. (Id. at 8:24-27, 9:5-21.) "Preparation of an EIS is mandated where uncertainty may be resolved by further collection of data. . . ."National Parks Conservation Ass'n v. Babbitt, 241 F.3d 722, 732 (9th Cir. 2001). Accordingly, the court finds that defendant Service's action, in failing to prepare an EIS where a controversy might exist and where a project's effects were highly uncertain or involved unknown risks, was "unreasonable" for purposes of the EAJA. (Id. at 7:2-16, 8:1-10, 8:24-27).
Additionally, defendants prepared the EA in an untimely manner, further supporting a finding of unreasonableness under the EAJA. As "proper timing is one of NEPA's central themes," an agency must prepare an assessment so that it "`can serve practically as an important contribution to the decisionmaking process. . . .'" Save the Yaak Committee v. Block, 840 F.2d 714, 718 (9th Cir. 1988) (quoting 40 C.F.R. § 1502.5 (1987)). InBlock, the defendant USDA Forest Service awarded reconstruction contracts for a road before preparing EAs, and construction began before the Forest Service prepared a biological assessment ("BA"). Id. at 716-717. In fact, the defendants began constructing one section of the road without completing an EA.Id. at 716.
Similarly, the court noted here that defendants chose "in 2002 not to conduct a full NEPA analysis" and, after "promising to perform the requisite analysis," waited two years before completing the subject EA in compliance with NEPA. (Am. Mem. Order at n. 8.) Further, defendants failed to answer Lahontan Regional Board's inquiries in a timely manner, instead requesting the State Water Board to "review the Lahontan Board's actions and grant the permit" required to move forward with the Project. (Id.) As in Block, defendants here delayed in conducting an appropriate NEPA analysis, rendering the government's underlying actions unreasonable for purposes of the EAJA.
Defendants argue that the court's comments during the preliminary injunction proceedings, namely that the case was difficult to decide, "plainly indicate" that the government's position was substantially justified. (Dfs.' Opp'n at 6:10-23.) Additionally, defendants recount their arguments in opposition to plaintiffs' motions for a TRO and PI as evidence of substantial justification. (Id. at 6:23-28, 7:1-5.) The court finds both arguments unsatisfactory in light of the court's final decisions to grant a TRO and PI to plaintiffs. Having already analyzed and rejected defendants' arguments, the court does not now repeat that analysis.
Finally, the Ninth Circuit has held that "fees generally should be awarded where the government's underlying action was unreasonable even if the government advanced a reasonable litigation position." United States v. Marolf, 277 F.3d 1156, 1159 (9th Cir. 2002); see also High Sierra Hikers Association v. Blackwell, CIV. 00-01239 (9th Cir. [Appellate Comm'er Dec.] Mar. 16, 2006) (Ex. E to Pls.' Mem. of P. A., filed May 19, 2006, at 11). Therefore, even if the court found defendants' litigation positions, against the motions for a TRO and a PI, to be marginally reasonable, the court does not find defendants' overall position substantially justified for purposes of the EAJA in light of defendant Service's unreasonable underlying actions.
Defendants also point to the court's decision to grant their motion to dismiss plaintiffs' complaint, after the case was rendered moot, as reflecting the government's reasonable litigation position. (Dfs.' Opp'n at 11:16-20.) However, defendants' success on the motion to dismiss does not preclude the court from rejecting their substantial justification defenses on the motions for a TRO and PI. Instead, the court acknowledges, and takes into account, defendants' success on the motion to dismiss when calculating plaintiffs' fee award.
III. Special Circumstances
The case involves no special circumstances that would make an award of fees unjust. The merits of the case did not involve a novel, important and doubtful, or close question. Cf. United States v. Gavilan Joint Community College Dist., 849 F.2d 1246, 1249 (9th Cir. 1988). Neither does the case involve an issue upon which "reasonable minds could differ. . . ." League of Women Voters v. FCC, 798 F.2d at 1260. Further, defendants do not contend that special circumstances preclude the court from awarding attorney fees, costs, and other expenses under the EAJA.IV. Calculation of Attorney Fees
The EAJA requires a prevailing party to include "an itemized statement for any attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed." 28 U.S.C. § 2412(d)(1)(B). Plaintiffs amply satisfy their burden of production. (See generally Frost, Olson Decls., filed May 19, 2006). They request the court to award their attorneys Julia Olson ("Olson") and Peter Frost ("Frost") $99,245 in fees for 316.9 hours of work. (Pls.' Reply, filed August 2, 2006, at 23:1-10). To determine reasonable attorney fees, the court must multiply "the number of hours reasonably expended on the litigation . . . by a reasonable hourly rate." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Accordingly, the court first determines whether plaintiffs' requested rates are reasonable, and then ascertains the reasonable hours worked.
A. Rate
The EAJA limits the award of attorney fees to $125 per hour unless the court identifies a cost of living increase or "a special factor, such as the limited availability of qualified attorneys for the proceedings involved" to justify a higher fee. 28 U.S.C. § 2412(d)(2)(A).
Where the court awards fees in excess of the statutory rate based upon an existing "special factor," the higher rates subsume a cost of living increase. Therefore, as the court here awards plaintiffs' attorneys increased fees dependent upon the specialized nature of this case, the court does not detail the appropriate cost of living increase which would be applicable otherwise.
Plaintiffs' attorneys seek fee rates of $275, $300, and $325 for Olson's work in 2004, 2005, and 2006, respectively, and rates of $325 and $350 for Frost's work in 2005 and 2006, respectively, arguing that plaintiffs' attorneys satisfy the criteria required for a "special factor" enhancement to the statutory rate under the EAJA. (Pls.' Mot. at 10:23-26.) Plaintiffs correctly cite the Ninth Circuit's three-part test to determine whether a "special factor" exists such that the court may award fees exceeding the statutory rate. Love v. Reilly, 924 F.2d 1492, 1495 (9th Cir. 1991) (citing Prius v. Bowen, 869 F.2d 536 (9th Cir. 1989)). The attorney must 1) must possess distinctive knowledge and skills developed through a practice specialty which are 2) needed in the litigation and 3) are not available elsewhere at the statutory rate. Prius, 869 F.2d at 541-542.
Specifically, "environmental litigation is an identifiable practice specialty that requires distinctive knowledge." Love, 924 F.2d at 1496 (citation omitted). In Love, the plaintiff's attorney submitted an affidavit detailing his experience in court and in administrative proceedings involving insecticides and preliminary injunctions, such that the district court found he had developed "distinctive knowledge" for purposes of EAJA "special factor" fees. Id. Here, Olson has spent nine years and Frost has spent fourteen years "litigating exclusively environmental cases. . . ." (Pls.' Mot. at 8:6-8, 8:22-23; Olson Decl. at ¶¶ 4,6; Frost Decl. at ¶¶ 1-3, 5.) In fact, this court has held in a previous environmental case that Olson has "specialized skills warranting an adjustment to her fees."Californians for Alternatives to Toxics v. Dombeck, CIV. S-00-605 (E.D. Cal. 2004) (Karlton, J.) (Ex. G to Pls.' Mem. of P. A. at 11:5-9). Further, the Ninth Circuit has held that both Olson and Frost possess "distinctive knowledge and skill" required to understand the "complex interplay between several statutory schemes" including NEPA. Blackwell, CIV. 00-01239, Ex. E to Pls.' Mem. of P. A. at 17. As inBlackwell, here plaintiffs' attorneys' distinctive skills in environmental litigation were necessary to interpret NEPA and its relevant requirements, the EIS and EA.
Judge Karlton awarded Olson her requested fee rate of $175 per hour for her work in 1999, 2000, 2001, 2002, and April 2003. Id. at 9 n. 5. Environmental attorneys Sharon Duggan and David Williams were awarded a rate of $275 per hour for their work on the case during the same years. Id. at 25:19-24.
Additionally, where plaintiffs submit declarations from plaintiffs and attorneys demonstrating that their attorneys' distinctive skills were unavailable elsewhere at the statutory rate, and the government fails to provide evidence to the contrary, plaintiffs satisfy the last element of the Love test. (Id. at 18). Here, plaintiffs submitted a declaration from plaintiff Patricia Clary ("Clary") stating that plaintiffs "were unable to secure representation in this federal case from qualified attorneys at the EAJA rate." (Clary Decl., filed May 19, 2006, ¶ 3). Defendants argue that since Clary never specifies "the nature of the [attorney] search . . . or whether she specifically looked in Sacramento, the relevant market," her declaration fails to show that attorneys with comparable skills were unavailable at the statutory rate. (Dfs.' Opp'n at 18:14-24.) However, the court does not find authority, nor have defendants cited any, requiring plaintiffs to make such a specific showing.
Moreover, plaintiffs submit a declaration from Sharon Duggan ("Duggan"), an attorney specialized in environmental law and aware of billing rates in the "legal market in Sacramento," who previously collaborated with both attorneys on environmental cases. (Duggan Decl., filed May 19, 2006, ¶¶ 9-12). Duggan states that she was previously awarded, in 1999, $235 an hour in a County of Sacramento case and also in 1999, $275 an hour in this district court for an environmental case, both awards in excess of the EAJA's statutory rate at the time. (Id. at ¶ 9).
Finally, plaintiffs note that the Ninth Circuit awarded both Olson and Frost enhanced rates ranging from $250 to $300 and $275 to $325, respectively, for their work on Blackwell from 2002 to 2004. (Pls.' Mot. at 10:26-28, 11:1-2). Significantly, as inBlackwell, defendants do not introduce evidence that any attorney would represent plaintiffs in this case at the statutory rate. Further, in challenging plaintiffs' argument for enhanced fees, defendants fail to alternatively offer a different enhanced fee rate to be awarded to plaintiffs. Therefore, plaintiffs satisfy a showing of a "special factor," such that the court awards Olson and Frost enhanced rates of $275, $300, and $325 an hour for 2004, 2005, and 2006, respectively.
The court declines to grant Frost enhanced rates of $325 and $350, higher than those requested by Olson. While the Ninth Circuit awarded Frost enhanced rates at $25 per hour more than Olson in Blackwell, the court awarded fees based upon evidence of the reasonable rates for attorneys in San Francisco. Here, however, the court must refer to the market rate of the "forum district," Sacramento. Mendenhall v. National Transp. Safety Bd., 213 F.3d 464, 471 n. 5 (9th Cir. 2000). Plaintiffs do not provide evidence differentiating both attorneys' experiences to justify awarding Frost a higher enhanced fee than Olson based upon Sacramento prevailing rates. Declarant Duggan only states that both attorneys "practice in a highly specialized field of environmental law, and they are among the most proficient practioners." (Duggan Decl. at ¶ 10). The court, therefore, awards both Olson and Frost the same enhanced rates.
B. Reasonable Hours
In awarding attorney fees ("fees"), the district court must consider only those hours which are reasonably expended, excluding any "excessive, redundant, or otherwise unnecessary" hours. Hensley, 461 U.S. at 434. Specifically, where a party brings multiple claims, failing on one claim "distinct in all respects from" the other successful claims, the court cannot include the hours that party expended upon preparing and litigating the failed claim when calculating fees. Id. at 440. However, time expended on this fee motion may be included in calculating the prevailing party's fee award. Commissioner, INS v. Jean, 496 U.S. 154, 162 (1990).
Aside from this motion for attorney fees, this case involves three stages of litigation for which plaintiffs seek to recover fees: plaintiffs' motion for a TRO, plaintiffs' motion for a PI, and defendants' motion to dismiss. Additionally, plaintiffs seek to recover costs and other expenses.
Defendants do not object to plaintiffs' recovery for hours spent preparing this motion for attorney fees, costs and other expenses. Accordingly, the court awards plaintiffs attorney fees for Olson's 23.5 (including 5 hours on plaintiffs' reply) and Frost's 4.7 hours spent on this motion. The calculation of these hours is further detailed later.
Plaintiffs submitted itemized statements detailing the number of hours they spent on this action. While they itemize these hours by date, they do not categorize hours by each stage of litigation. However, defendants did categorize the number of hours plaintiffs' attorneys spent on each phase of litigation, based upon plaintiffs' statements. Unless otherwise indicated, the court finds that defendants categorized plaintiffs' attorney fee hours accurately.
1. Motion for a TRO
Defendants first argue that the court should not award fees for plaintiffs' time spent on the motion for a TRO, as plaintiffs unreasonably delayed bringing the motion more than a year after the claim became ripe. (Dfs.' Opp'n at 12:1-12.) Defendants are correct that in ruling on plaintiffs' motions for a TRO and PI, the court noted that plaintiffs delayed in bringing their action. (Transc. of Motion for PI Hearing, filed October 19, 2005, at 4:20-24). However, ultimately the court granted plaintiffs' motions. Plaintiffs explained in their motion for a TRO that they "in good faith sought to avoid having to seek . . . [a TRO]." (Pls.' Mot. for a TRO; filed August 22, 2005, at 8:8-9.) Specifically, plaintiffs stated that they "proposed [to defendants] that the parties agree to a briefing schedule that would avoid the need for an ex parte TRO application," but allow the court time to decide upon the issue of preliminary relief before CDFG could continue with the Project. (Id. at 8:13-17.) Defendants rejected the proposal. (Id. at 8:18.)
The EAJA permits the court to award "reasonable" attorney fees. 28 U.S.C. § 2412(d)(2)(A). The court finds that, since plaintiffs resorted to filing a motion for a TRO only after failing to reach an agreement with defendants regarding preliminary relief, plaintiffs' time spent on the TRO motion was reasonable for purposes of the EAJA. As such, the court awards plaintiffs fees for the time spent on the motion for a TRO.
Defendants indicate that Olson spent 85.7 hours and Frost spent 46.3 hours total on the TRO motion, all within 2005, based upon plaintiffs' itemized statements of time expended. (Dfs.' Opp'n at Ex. A-1, A-2).
2. Motion to dismiss
Defendants additionally oppose plaintiffs' recovery of attorney fees for time spent litigating defendants' motion to dismiss, as plaintiffs lost that motion. The court agrees with defendants. Defendants' motion to dismiss stemmed from plaintiffs' case becoming moot once the court granted plaintiffs' PI request. In dismissing plaintiffs' complaint, the court held that defendants' met their "heavy" burden in establishing that their alleged violation was unlikely to recur and that subsequent events in the case, specifically the cancellation of the Project, eliminated any alleged harm to plaintiffs. (Mem. Order, filed February 27, 2006, at 10:5-7, 11:27-28, 12:1-2.) Plaintiffs contend that, in light of the Ninth Circuit's decision in Watson v. County of Riverside to award fees to a plaintiff even for time spent on claims that plaintiff lost, the court should award fees for the time they spent on the motion to dismiss. (Pls.' Reply at 14:18-24).
However, plaintiffs do not dispute that "the district court has discretion in determining the amount of a fee award." Hensley, 461 U.S. at 438. Specifically, if the plaintiffs' losing claims are related to their successful claims, "the court must then evaluate the significance of the result achieved and calibrate the compensation accordingly." Outdoor Sys., Inc. v. City of Mesa, 997 F.2d 604, 619 (9th Cir. 1993) (citingHensley, 461 U.S. at 434-437). Related claims "will involve a common core of facts or will be based on related legal theories."Hensley, 461 U.S. at 435. Here, the motion to dismiss involved facts distinct from those addressed in the other motions litigated in this case. At the motion to dismiss stage, the court addressed whether plaintiffs' action became moot once defendant Service withdrew the special permit granted to CDFG to execute the Project, after the court granted plaintiffs' motion for a PI. (Memo. Order, filed February 27, 2006, at 1:25-28, 2:1-5). In contrast, the motions for a TRO and PI centered around defendants' failure to prepare an EIS before authorizing CDFG to proceed with the Project. Furthermore, plaintiffs do not contend that they relied upon legal theories for the motion to dismiss related to their successful motions. As such, the court declines to award plaintiffs attorney fees for time expended on the motion to dismiss.
Defendants referred to plaintiffs' itemized statements to determine how many hours plaintiffs spent on the motion to dismiss. (Dfs.' Opp'n at Ex. B-1, B-2). According to defendants' calculations, in 2005 Olson spent 3 hours and Frost spent 33 hours on the motion to dismiss, and in 2006, Olson spent 1.4 hours and Frost spent 6.4 hours on the same motion. However, defendants incorrectly incorporated hours plaintiffs' attorneys spent before defendants filed the motion to dismiss in its calculations. The court finds that in 2005, Olson actually spent 2.2 hours and Frost spent 23.6 hours on the motion to dismiss. Defendants' calculations for hours spent in 2006 are correct. Accordingly, the court excludes only the hours plaintiffs spent on the motion to dismiss, after it was filed, from its calculations of attorney fees.
3. Motion for a preliminary injunction and administrative proceedings/state litigation
While defendants do not contest plaintiffs' request for a fee award that includes time spent on the PI motion, defendants do argue that the court should prohibit plaintiffs from receiving compensation for their attorneys' work on administrative proceedings or state litigation regarding the Project. (Dfs.' Opp'n at 13:22-25, 14:1-8.) The court is persuaded by defendants' argument. The EAJA permits recovery for fees "incurred . . . in any civil action . . . in any court having jurisdiction over that action. . . ." 28 U.S.C. § 2412(d)(1)(A). In light of section 504(a)(5), "the only part of the EAJA that allows fees and expenses for administrative proceedings conducted prior to the filing of a civil action," the Supreme Court held that a court may not award fees for administrative proceedings under section 2412(d)(1)(A). Melkonyan v. Sullivan, 501 U.S. 89, 93-94 (1991).
Where a prevailing party does not bring suit to recover fees under section 504(a)(5), the court cannot award fees for administrative proceedings unless "a civil suit has been brought, the court orders the parties to resolve an issue in an administrative proceeding, retains jurisdiction of the civil action, and the resolution of the action depends upon the outcome of the administrative proceedings upon jurisdiction of the civil action. . . ." Dombeck, CIV. S-00-605, Ex. G to Pls.' Mem. of P. A. at 22:5-23. Here, plaintiffs do not bring this motion under section 504(a)(5), nor did the court previously order the resolution of any administrative proceeding.
Defendants note the number of hours plaintiffs spent on administrative proceedings and state litigation in detail. They contend that the hours spent on this work should be excluded from a fee award. (Dfs.' Opp'n at 13:22-25, 14:1-8). The court agrees to exclude these hours to the extent they were spent before plaintiffs' commenced this action or were spent on work related to state litigation.
Plaintiffs nonetheless argue that their attorneys should be compensated for time spent preparing this action prior to filing their complaint, citing the Supreme Court's decision in Webb v. Dyer County Bd. of Educ. (Pls.' Reply at 17:14-15). However, inWebb, the Supreme Court noted that the administrative proceeding was easily distinguishable from the judicial proceeding, such that the district court correctly precluded recovery for time spent on administrative work before the action was filed. 471 U.S. 234, 242-243 (1985). Furthermore, where the court cannot decipher from plaintiffs' records whether Olson's hours spent during this action pertained to state or federal litigation, the court declines to award attorney fees for the time expended. The court thereby reduces plaintiffs' fee award accordingly.
According to defendants' review of plaintiffs' itemized statements, Olson spent 10.5 hours in 2004 and 30.6 hours in 2005 on administrative and state litigation work. (Dfs.' Opp'n at Ex. C). The court finds that Olson did spend 10.5 hours in 2004 but that she actually only spent 16.8 hours in 2005 on administrative work or state proceedings. Olson spent the remaining 13.8 hours, which defendants argue were also spent on non-compensable work, to develop this civil action. Furthermore, the 30.6 hours of work include 0.3 hours, expended on February 26, 2005, that defendants already included in the time spent on the motion to dismiss for which plaintiffs cannot recover. Accordingly, in fairness to plaintiffs, the court precludes plaintiffs from recovering for 16.5 hours, not 30.6 hours, Olson spent in 2005.
V. Costs and Other Expenses
In addition to fees, a prevailing party may recover costs and other expenses pursuant to section 2412(a)(1) and 2412(d)(1)(A). Plaintiffs request $3,143.10 in costs, $10,550.00 in expert witness fees, $1,150.00 in fees for attorney declarations in support of the rates plaintiffs request and hours plaintiffs claim, and 3.8 hours of time spent on preparing these declarations. Defendants oppose plaintiffs' request for $1,150.00 in compensation for the attorneys' declarations and the 3.8 hours Olson spent on these declarations. (Dfs. Opp'n at 17:3-10). They argue that the court did "not need the testimony of counsel's associates . . . in order to determine the quality of the representation in this case." (Id.) The court agrees regarding the declarations of attorneys Axline and Yeates. However, the court relied upon Duggan's declaration in finding that specialized attorneys were not available at the statutory rate in Sacramento. Therefore, Duggan's fee of $400 and Olson's 1.3 hours of time working with Duggan to prepare her declaration are included in the fee award.VI. Conclusion
After reducing plaintiffs' request for fees, costs and other expenses as appropriate, the court grants attorney fees in the amount of $78,402.50 and expenses in the amount of $12,943.00 to plaintiffs, for a total award of $91,345.50.IT IS SO ORDERED.
ATTACHMENT "A"
The amount is based on the costs and fees sufficiently documented by plaintiffs' counsel, and the reductions discussed above.ATTORNEYS
OLSON
Year Rate per hr Hours Total Award
2004 $275 0 $0.00 2005 $300 125.5 $37,650.00 2006 $325 21 $6,825.00 _____________________________________________ OLSON TOTAL: $44,475.00
Year Hrs Originally Reduced By Type of Work Total Hrs Requested Awarded
2004 10.5 10.5 Administrative 0 proceedings/ state litigation
2005 30.6 16.8 Administrative 13.5 proceedings/ state litigation 85.7 0 TRO motion 85.7 25.5 0 PI motion 25.5 3 2.2 Motion to dismiss 0.8
2006 1.4 1.4 Motion to 0 dismiss 23.5 2.5 Fee motion 21FROST
Year Rate per hr Hours Total Award
2004 $275 0 $0
2005 $300 108 $32,400.00
2006 $325 4.7 $1,527.50 __________________________________________________ FROST TOTAL: $33,927.50
Year Hrs Originally Reduced By Type of Work Total Hrs Requested Awarded
2004 0 0 N/A 0
2005 46.3 0 TRO motion 46.3 52.3 0 PI motion 52.3 33 23.6 Motion to 9.4 dismiss
2006 6.4 6.4 Motion to 0 dismiss 4.7 0 Fee motion 4.7COSTS AND OTHER EXPENSES
Purpose Cost Originally Total Cost Awarded Requested
Expert witnesses: Nancy Erman $6,350.00 $6,350.00 Don Erman $4,200.00 $4,200.00
Filing fees, $3,143.00 $3,143.00 transcripts, meals, postage, supplies, telephone, and travel expenses __________________________________________________________ Sub-Total: $13,693.00
Time spent on $1,150.00 already — $750.00 attorney included in fee declarations by request (For Axline's and Axline, Yeates, and Yeates' Duggan in support declarations) of fee motion __________________________________________________________ Total: $12,943.00GRAND TOTAL EAJA AWARD: $91,345.50