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noting that, in an ESA case, 76.3 hours spent on fee motion was reasonable
Summary of this case from Home Builders Assoc. v. U.S. Fish Wildlife ServOpinion
NO. CIV. S-05-1502 LKK/JFM.
October 10, 2007
ORDER
Plaintiffs Californians for Alternatives to Toxics, Forest Issues Group, California Native Plant Society, California Indian Basketweavers Association, Sierra Club — Mother Lode Chapter, Sierra Foothills Audubon Society, and South Yuba River Citizens League (collectively, "plaintiffs") have filed a motion for attorney fees, costs, and other expenses under the Equal Access to Justice Act, which they allege they incurred in a civil action against defendants Steven Eubanks, Sam Wilbanks, and United States Forest Service (collectively, "defendants"). Plaintiffs seek an award of $137,616 for attorney fees and $2,738.43 for costs.
For the reasons set forth below, the plaintiff's motion is granted in part. The court awards plaintiffs $129,837.18 in fees and costs.
I. Procedural History
In July, 2005, the plaintiffs brought suit against the United States Forest Service and related defendants pursuant to the National Environmental Policy Act, 42 U.S.C. § 4321, et seq, National Forest Management Act, 16 U.S.C. § 1600, et seq, and the Administrative Procedures Act, 5 U.S.C. § 701, et seq. Specifically, the plaintiffs challenged the Environmental Impact Statement and Record of Decision that the defendants had issued, which addressed the reforestation of the Cottonwood burn area of the Tahoe National Forest. The plaintiffs sought declaratory judgments that the defendants violated these statutes and an injunction barring the defendants from implementing the project described in the Environmental Impact Statement and Record of Decision (the "Cottonwood Project").
In September, 2005, the court ordered the relating of this action with the case numbered S-00-2016 LKK/JFM. In January, 2006, the court issued an order requiring that motions for summary judgment be filed no later than May 5, 2006. On May 3, 2006, the parties stipulated to continue the briefing schedule to permit opening briefs for motions for summary judgment be filed no later than June 16, 2006.
On June 15, 2006, the defendants filed a request to suspend further briefing and hold the case in the abeyance, based upon a recent decision issued by the Ninth Circuit. The defendants contended that Earth Island Institute v. United States Forest Service, 442 F.3d 1147 (9th Cir. March 24, 2006), "impose[d] burdensome new requirements for monitoring populations of `management indicator species'" and that the Environmental Impact Statement and Record of Decision at issue in the present case did not comply with the requirements of Earth Island Institute. The defendants described Earth Island Institute's holding as unanticipated and wrongly decided, and informed the court that the United States Forest Service had filed a petition for rehearing en banc in Earth Island Institute. Finally, the defendants stated that "[i]n the meantime, the government will refrain from implementing the challenged decision."
That petition was subsequently denied. Petition for certiorari was later denied as well. United States Forest Service v. Earth Island Institute, ___ U.S. ___, 127 S.Ct. 1829 (March 19, 2007).
A few hours after the defendants filed their motion, the plaintiffs filed a response. The plaintiffs contended that Earth Island Institute did not necessitate an abeyance in the present case, but if one was granted, the court should enjoin defendants from implementing the Cottonwood Project Record of Decision.
The next day, the court ordered that the present case be stayed until appellate proceedings in Earth Island Institute were concluded. Additionally, the court enjoined the defendants from implementing the Record of Decision while the case was stayed. The court explained that its ruling was based on the parties' briefing.
On May 4, 2007, the United States Department of Agriculture withdrew the challenged Record of Decision in this case. In a joint status report filed with this court on May 10, 2007, the parties stated that "[i]n defendants' view, withdrawal of the challenged decision renders this case moot. . . ." On July 3, 2007, the court dismissed the complaint pursuant to a stipulation by the parties.
Plaintiff now seeks attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(a)-(d).
II. Standard
Under the Equal Access to Justice Act, 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). 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).
III. Analysis
Plaintiff requests $140,354.43 in attorneys' fees and costs. For the reasons discussed herein, the court awards plaintiffs $129,837.18.
A. Prevailing Party
A party is a prevailing party if it "succeed[ed] on any significant issue in litigation which achiev[ed] some of the benefits" it sought in bringing suit. National Wildlife Federation v. Federal Energy Regulatory Comm'n, 870 F.2d 542, 544 (9th Cir. 1989). The plaintiff's success must not solely derive from the defendant's voluntary cessation of its conduct.Buckhannon Board and Care Home, Inc. v. West Virginia Dept. of Health, 532 U.S. 598 (2001). Instead, there must be a "judicial imprimatur" that changes the legal relationship of the parties.Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002).
Defendants contend that obtaining an enforceable judgment on the merits or a court-ordered consent decree are the only means of becoming a prevailing party. The Ninth Circuit expressly rejected this argument in Watson. See 300 F.3d at 1096. There, the plaintiff had sued his county employer for due process claim, some of which related to a report his employer required him to write. Id. at 1094. The plaintiff sought and was granted a preliminary injunction against the use of the report in an administrative hearing against him. Id. Later, his prayer for injunctive relief became moot when his administrative hearing occurred, so the court dismissed that cause of action. Id.
Although the plaintiff only obtained relief in the form of a preliminary injunction that later became moot, this sufficed to render the plaintiff the prevailing party. Id. at 1095-96. By obtaining a preliminary injunction, he had prevailed on some of his claims. Id. at 1095. The court rejected the argument thatBuckhannon, 532 U.S. 598, required a judgment on the merits or a consent decree in order for a plaintiff to be considered a prevailing party. Id. at 1096. Consent decrees and rulings on the merits were simply examples of court actions that would satisfy the standard. Id.; see also Buckhannon, 532 U.S. at 605 (characterizing a judgment on the merits and a consent decree as "examples" of what may confer prevailing party status).
Watson further demonstrates that a plaintiff may be a prevailing party if his claim later becomes moot. See 300 F.3d at 1096; see also Williams v. Alioto, 625 F.2d 845, 847 (9th Cir. 1980) (holding the plaintiff was a prevailing party after obtaining a preliminary injunction, although his claims later became moot). The Watson court distinguished this situation from one where the plaintiff prevails on the preliminary injunction but loses on the merits later. Id. In the latter, the plaintiff could not properly be considered a prevailing party. Id.; see also Sole v. Wyner, ___ U.S. ___, 127 S. Ct. 2188 (June 4, 2007) ("[p]revailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case").
Finally, a preliminary injunction carries "judicial imprimatur" sufficient to establish prevailing party status, even where the defendant voluntarily agreed to refrain from the behavior at issue. In comparable situations, the Ninth Circuit has repeatedly held that a court action "materially alter[s] the legal relationship between the parties, because the defendants were required to do something directly benefitting the plaintiffs that they otherwise would not have had to do." Richard S. v. Department of Developmental Services of the State of California, 317 F.3d 1080, 1087 (9th Cir. 2003) (legally enforceable settlement agreement; italics supplied); see also Fisher v. SJB-P.D., Inc., 214 F.3d 1115, 1118 (9th Cir. 2000) (same);Carbonell v. I.N.S., 429 F.3d 894, 900-901 (9th Cir. 2005) (court-ordered stay of deportation, after stipulation by both parties). Although one party or both may agree to a course of conduct, the legal relationship between them is not changed until the court has mandated it through some action of its own. See Carbonell, 429 F.3d at 901. Once that occurs, there has been the "judicial imprimatur" necessary for prevailing party status. See id.
Here, the plaintiffs have demonstrated that they were the prevailing party in their action against defendants. They achieved the results they sought, in obtaining an injunction against the defendants' use of the Record of Decision and Environmental Impact Statement at issue. This victory was not undone by a later adverse ruling on the merits. See Sole, 127 S. Ct. 2188. Though the plaintiffs' claims were later mooted by the withdrawal of the Record of Decision and Environmental Impact Statement, under this circuit's precedent, I conclude that the subsequent mooting of plaintiff's claims does not nullify the plaintiffs' victory in obtaining the preliminary injunction. See Watson, 300 F.3d at 1096; Williams, 625 F.2d at 847.
In the court's order of June 16, 2006, the defendants were enjoined from implementing the contested Record of Decision while the case was stayed. This action by the court sufficed to give a judicial imprimatur to the changed legal relationship between the parties. See Richard S., 317 F.3d at 1087; Carbonell, 429 F.3d at 900-901. Although the defendants had indicated they voluntarily would refrain from implementing the record of Decision while appellate proceedings in Earth Island Institute were pending, such a position is of no moment to the prevailing party analysis. The court's injunction required an action from the defendants that they otherwise were not required to perform. See Carbonell, 429 F.3d at 900-901. Consequently, the plaintiffs were the prevailing parties in their action.
B. Injustice of Awarding Fees
A prevailing plaintiff should ordinarily recover attorneys' fees unless special circumstances would render such an award unjust. 28 U.S.C. § 2412(d)(1)(A); Barrios, 277 F.3d at 1134. Here, defendant argues that the awarding of fees would be unjust because the plaintiff "led this court into error" in the issuance of the June 16, 2006 preliminary injunction. The court cannot agree.
At the time of the issuance of the injunction, the court had before it defendants' request for an abeyance, in which defendants informed the court that a recent Ninth Circuit decision had made unlawful the Record of Decision at issue in the instant case. Furthermore, the Ninth Circuit has characterized the decision to issue a preliminary injunction as a sliding scale analysis, whereby the district court consider the plaintiff's likelihood of success on the merit and possibility of irreparable harm. See Earth Island Institute v. United States Forest Service, 351 F.3d 1291, 1297-98 (9th Cir. 2003). An injunction may issue where plaintiffs have shown " probable success on the merits and the possibility of irreparable harm." Id. at 1298 (italics in original). In a case such as this, where defendants themselves indicate that the plaintiffs were extremely likely — if not certain — to prevail on the merits, the issuance of the preliminary injunction was proper.
Moreover, the court observes that the defendants sought no redress for the preliminary injunction that they now contend was erroneous. Defendants neither moved for reconsideration nor appealed to the Ninth Circuit. As such, it would not be unjust to award attorneys' fees in this case, based upon the issuance the preliminary injunction that favored the plaintiffs. See Select Milk Producers, Inc. v. Johanns, 400 F.3d 939, 950 (9th Cir. 2005) (holding that "it is not somehow unfair here to conclude that [the plaintiffs] were the prevailing parties when the Government voluntarily forfeited its right to appeal the injunction. . . .").
C. Substantial Justification for Defendants' Position
The court should not award attorneys' fees, costs, and expenses if it finds that the position of the United States was substantially justified. 28 U.S.C. § 2412(d)(1)(A). A position is substantially justified if it has a reasonable basis in both law and fact. Pierce v. Underwood, 487 U.S. 552, 565 (1988). This determination turns on whether the government was substantially justified either in taking its original action or in defending that action in court. Kali v. Bowen, 854 F.2d 329, 332 (9th Cir. 1988); United States v. Marolf, 277 F.3d 1156, 1164 n. 5 (9th Cir. 2002). The defendant bears the burden of proof on this issue. Flores v. Shalala, 49 F.3d 562, 569-70 (9th Cir. 1988).
Here, plaintiffs argue that defendants were not substantially justified in their position because they approved the Cottonwood Project without having complied with established monitoring requirements for the Tahoe National Forest. Plaintiffs, therefore, refer to the first alternative of Kali's rule, that the defendants were not substantially justified in their "original act," which had formed the basis of the plaintiffs' claim. See 854 F.2d at 332. As explained below, the court agrees with plaintiffs' position.
The monitoring requirements to which the plaintiffs refer are those contained in Appendix E of The Sierra Nevada Framework Plan Amendment ("2001 Framework") and re-adopted in the 2004 amendment to the 2001 Framework. Both Frameworks are comprehensive forest plans for the national forests in the Sierra Nevada Mountains, which includes the Tahoe National Forest. See Earth Island Institute v. United States Forest Service, 442 F.3d 1147 (9th Cir. 2006). Appendix E of the 2001 Framework lists Management Indicator Species (MIS) that may be present in "old forest ecosystems" and indicates which of these species it is expected will be monitored for population levels. See Supplemental Declaration of Rachel Fazio in Support of Plaintiffs' Motion ("Fazio Supp. Decl.") Exh. 3.
The crux of defendants' argument is that it was not until the Ninth Circuit's decision in Earth Island Institute that the defendants learned that Appendix E's monitoring requirements were mandatory. In Earth Island Institute, 442 F.3d 1147, the Ninth Circuit held that the 2001 and 2004 Frameworks, as well as the governing federal regulations, command the Forest Service to monitor population levels of MIS. Id. at 1173-76. Furthermore, it held that the Forest Service acted arbitrarily and capriciously, under the Administrative Procedures Act, in relying on an alternative source for this data. Id. at 1176.
The Ninth Circuit based its holding on several considerations. First, the 2001 Framework plainly states that "population and/or habitat monitoring will be conducted for all MIS and species at risk." Id. at 1173. The Framework goes on to describe the very limited circumstances where habitat monitoring can replace population monitoring. Id. Second, Appendix E of the 2001 Framework "makes explicit" that population data must be collected for certain species. Id. Third, the regulations that apply to the 2001 and 2004 Frameworks clearly required population monitoring.Id. at 1173; see 36 C.F.R. § 219.
The Earth Island Institute court discussed with approval Judge England's holding in Sierra Club v. Eubanks, 335 F. Supp. 2d 1070 (E.D. Cal. 2004). There, the government had contended that, under the Tahoe Forest Plan, the Forest Service need not monitor population levels so long as it concludes that the MIS's habitat would not be adversely affected by the contested action. Eubanks, 335 F. Supp. 2d at 1081. The court held that annual population monitoring was required for the MIS listed in Appendix E and which had check marks next to them, denoting the specific type of monitoring. Id. The court also held that habitat analysis can replace population data in some limited circumstances, and, after finding that the government had not shown that there had existed adequate habitat data at the time of the Forest Service's action, the court granted a preliminary injunction against the defendants. Id. at 1802.
The Earth Island Institute court stated that the defendants' argument in that case suffered from the same deficiency as that in Eubanks, in that the data describing habitat monitoring was inadequate. 442 F.3d at 1175. Habitat monitoring can only replace population monitoring where the Forest Service shows that it had "(1) consulted field studies showing how many acres of territory an individual species needed; (2) assumed that the amount of acreage remained constant no matter the actual size of the individual species' territory; and then (3) examined the proposed alternatives to see how many acres of necessary habitat remained after the timber was harvested." Id. (citing Inland Empire Public Land Council v. United States Forest Service, 88 F.3d 754 (9th Cir. 1996)). The court held that the defendants had not met this standard for replacing population data with habitat data. Id.
Under the circumstances, this court is not persuaded that defendants' position was substantially justified. The administrative record shows that defendants had failed to monitor MIS population levels, as required by Appendix E of the 2001 Framework. See AR 4432 (discussing Forest Service's response to Plaintiffs' inquiries that monitoring has not occurred since 1996 and, even in 1996, the Forest Service had performed no population monitoring for fourteen of thirty-two MIS); AR 3720 (no population data for blue grouse); AR 3718-19 (no population data for mountain quail). The defendants have directed the court to nothing in the administrative record showing that the Forest Service has complied with the Appendix E monitoring requirements, and the court's independent review of the record has likewise yielded nothing demonstrating that the Forest Service has complied with these requirements.
It should also be noted that there are species, Sierra Nevada Snowshoe Hare, White-tailed Hare or Mountain White-crowned sparrow (either MIS or Species at Risk (SAR)), which were referenced in Plaintiffs' Complaint, which are designated in Appendix E as requiring monitoring (see Plaintiffs' Supp. Fazio Decl., Ex. 3, Appendix E, p. 64, Table E-9; p. 99, Table E-11), for which habitat exists and which would be affected by the Cottonwood project, and which the Cottonwood FEIS failed to mention, let alone provide monitoring data for. See AR 3600-04 (Cottonwood Wildlife Biological Evaluation); AR 3691-92 (MIS Report).
Defendants contend that it was not until the Ninth Circuit's decision in Earth Island Institute, 442 F.3d 1147, that it learned that Appendix E's monitoring requirements were mandatory. This decision, however, did not announce a surprising new proposition of law, but rather based its holding on the long-established rule that an agency must follow the plain language of the regulations and rules binding it. See Earth Island Institute, 442 F.3d at 1173; see also Wilderness Society v. Babbitt, 5 F.3d 383, 388 (9th Cir. 1988) (holding that, under the EAJA, a government action could not be considered substantially justified when the action was contrary to the plain language and clear direction of the law). The Ninth Circuit concluded that the 2001 Framework, 2004 Framework, and 36 C.F.R. section 219 explicitly require population monitoring of MIS. Id.;see also Eubanks, 335 F. Supp. 2d at 1081. The administrative record in the present case shows that the defendants did not comply with these requirements.
Furthermore, the court is not persuaded that the defendants were substantially justified in believing that theirs was one of the limited situations where habitat data could be reported in lieu of population data. Defendants contend that Island Empire, 88 F.3d 754, permits the Forest Service to report habitat data as a proxy for population monitoring data. However a key distinction between Island Empire and the present case is that, in Island Empire, there were no requirements for MIS monitoring in the regulations at issue there. See 88 F.3d at 758-63. Additionally, the defendants have not shown that, even if habitat monitoring would have been acceptable in lieu of Appendix E's population monitoring requirements, the habitat data that the Forest Service relied on here met Island Empire's standard. See id. at 759; Earth Island Institute, 442 F.3d at 1175 (describing Island Empire's rule).
In sum, the defendants' position in this action was not substantially justified, and the plaintiffs are therefore entitled to attorneys' fees, costs, and expenses under the Equal Access to Justice Act.
D. Calculation of a Reasonable Fee
The starting point for calculating the amount of a reasonable fee is the number of hours reasonably expended multiplied by a reasonable hourly rate. See Hensley, 461 U.S. at 433.
1. Reasonableness of Hourly Rate
Under the EAJA, attorneys' fees are award at an hourly rate of $125, unless the court determines a cost-of-living increase or "a special factor, such as the limited availability of qualified attorneys for the proceedings involved" warrant a rate increase. 28 U.S.C. § 2412(d)(2)(A). A "qualified" attorney is one who possesses "some distinctive knowledge or specialized skill needful for the litigation in question." Pierce v. Underwood, 487 U.S. 552, 572 (1988). An attorney with an identified practice specialty meets this standard. Id. The Ninth Circuit has held that environmental law is a practice speciality that requires distinctive knowledge. Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991). Finally, the plaintiff must show that, even if the attorneys possessed specialized knowledge needed for the litigation, attorneys possessing these skills were not available at the statutory rate.Id. at 1495.
a. Sharon Duggan
Plaintiffs allege that Ms. Duggan has met the Love criteria, justifying a rate increase. See 924 F.2d at 1492-93. Ms. Duggan has practiced environmental law exclusively for over twenty years. See Declaration of Sharon Duggan ("Duggan Decl.") ¶ 2. She has also co-authored a treatise on forestry practice in California. Id. at ¶ 9. The court previously has recognized that Ms. Duggan possesses distinctive skills justifying a fee increase. See Soda Mountain Wilderness Council v. Norton, No. 04-2583, slip op. at 5-6 (E.D. Cal. July 21, 2006); Californians for Alternatives to Toxics v. Dombeck, No. 00-0605, slip op. at 10 (E.D. Cal. Jan. 30, 2004). The plaintiffs have presented evidence that Ms. Duggan's skills were needed in this case and that those skills were unavailable elsewhere at the statutory rate. See Declaration of David Edelson ("Edelson Decl.") ¶¶ 3-4; Declaration of David Williams ("Williams Decl.") ¶¶ 5, 8, 11; Declaration of Thomas Lippe ("Lippe Decl.") ¶¶ 5, 6, 7; Declaration of Patricia Clary ("Clary Decl.") ¶ 3. Although defendants argue that the plaintiffs have not shown what efforts they took to find adequate counsel at the statutory rate, the court has not found any authority, nor does defendant cite any, requiring such a specific showing. Furthermore, defendants have not presented the court with any evidence that such counsel was available at the statutory rate.
Plaintiffs request this court award an hourly rate of $425 for Ms. Duggan's work. The court concludes that a rate of $325 is reasonable. Plaintiffs have shown that there is a "special factor" here warranting an upward variation from the base statutory rate. See 28 U.S.C. § 2412(d)(2)(A); Love, 924 F.2d at 1495. A rate of $325 was the rate awarded Ms. Duggan by the court just last year in Soda Mountain Wilderness Council, taking into account Ms. Duggan's specialized skill and knowledge and the reasonable marketrate for the Sacramento area. Furthermore, the plaintiffs' own declarant, David Edelson, stated that he believed $325 was a reasonable rate for Ms. Duggan's work. Edelson Decl. ¶ 5.
b. Julia Olson
Plaintiffs allege that Ms. Olson has met the Love criteria, justifying a rate increase. See 924 F.2d at 1492-93. Ms. Olson has practiced environmental law exclusively for over nine years.See Declaration of Julia Olson ("Olson Decl.") ¶ 3. She has successfully litigated environmental suits against federal defendants in the Ninth Circuit and district courts throughout the state. Id. at ¶ 4. The court previously has recognized that Ms. Duggan possesses distinctive skills justifying a fee increase. See Californians for Alternatives to Toxics, Wilderness Watch v. Troyer, No. 05-1633, slip op. at 5 (E.D. Cal. August 11, 2006); Californians for Alternatives to Toxics v. Dombeck, No. 00-605, slip op. at 10 (E.D. Cal. Jan. 30, 2004). The plaintiffs have presented evidence that Ms. Olson's skills were needed in this case and that those skills were unavailable elsewhere at the statutory rate. See Edelson Decl. ¶¶ 3-4; Williams Decl. ¶¶ 4, 8, 11; Lippe Decl. ¶¶ 5-7; Clary Decl. ¶ 3. As above, the court is not persuaded by the defendants' assertion that plaintiffs have not made an adequate showing of the unavailability of counsel at the statutory rate.
Plaintiffs request this court award an hourly rate of $325 for Ms. Olson's work. The court concludes that this rate is reasonable. Plaintiffs have shown that there is a "special factor" here warranting an upward variation from the base statutory rate. See 28 U.S.C. § 2412(d)(2)(A); Love, 924 F.2d at 1495. Moreover, $325 was the rate awarded Ms. Olson by the court last year in Troyer, taking into account Ms. Duggan's specialized skill and knowledge and the reasonable market-rate for the Sacramento area.
c. Michael Graf
Plaintiffs allege that Mr. Graf has met the Love criteria, justifying a rate increase. See 924 F.2d at 1492-93. Mr. Graf has practiced environmental law exclusively for ten years, and has litigated in federal courts and state courts throughout California. See Declaration of Michael Graf ("Graf Decl.") ¶ 2. He also received a Masters degree in Environmental Science, Policy and Management. Id. He has published several articles in environmental law journals. Id. at ¶ 3. The plaintiffs have presented evidence that Ms. Olson's skills were needed in this case and that those skills were unavailable elsewhere at the statutory rate. See Edelson Decl. ¶¶ 3-4; Williams Decl. ¶¶ 6, 8, 11; Lippe Decl. ¶¶ 4-7; Declaration of Don Rivenes ("Rivenes Decl.") ¶ 4; Declaration of Jason Rainey ("Rainey Decl.") ¶ 2. As above, the court is not persuaded by the defendants' assertion that plaintiffs have not made an adequate showing of the unavailability of counsel at the statutory rate.
Plaintiffs seeks an hourly rate of $325 for Mr. Graf. The court concludes that this rate is reasonable. Plaintiffs have shown that there is a "special factor" here warranting an upward variation from the base statutory rate. See 28 U.S.C. § 2412(d)(2)(A); Love, 924 F.2d at 1495. Furthermore, Mr. Graf's experience appears on par with that of Ms. Olson's, for whom the court has determined $325 is also a reasonable hourly rate.
d. Rachel Fazio
Plaintiffs allege that Ms. Fazio has met the Love criteria, justifying a rate increase. See 924 F.2d at 1492-93. Ms. Fazio has practiced environmental law exclusively for eight years. See Declaration of Rachel Fazio ("Fazio Decl.") ¶ 2. She has specialized in suits against the United States Forest Service alleging violations of NEPA and NFMA. Id. Moreover, she was counsel on Sierra Club v. Eubanks, 335 F. Supp. 2d 1070, andEarth Island Institute v. United States Forest Service, 442 F.3d 1147, two cases that were highly relevant to the plaintiffs' action in the present case, which indicates the Ms. Fazio's particular expertise in the plaintiffs' action. Id. at ¶ 3. The plaintiffs have presented evidence that Ms. Fazio's skills were needed in this case and that those skills were unavailable elsewhere at the statutory rate. See Edelson Decl. ¶¶ 3-5; Williams Decl. ¶¶ 6, 8, 11; Lippe Decl. ¶¶ 4-7; Rivenes Decl. ¶¶ 3-4; Rainey Decl. ¶ 2. As above, the court is not persuaded by the defendants' assertion that plaintiffs have not made an adequate showing of the unavailability of counsel at the statutory rate.
Plaintiffs seeks an hourly rate of $275 for 2005 and $300 for 2006 and 2007 for Ms. Fazio. The court concludes that this rate is reasonable. Plaintiffs have shown that there is a "special factor" here warranting an upward variation from the base statutory rate. See 28 U.S.C. § 2412(d)(2)(A); Love, 924 F.2d at 1495. Although Ms. Fazio has slightly less experience than plaintiffs' other counsel, her very specialized expertise leads the court to conclude that these rates are reasonable.
e. Attorneys Offering Declarations in Support of Attorney Fees
Plaintiffs request $1587.50 for attorney fees for David Williams, David Edelson, and Tom Lippe, each of whom submitted declarations in support of plaintiffs' motion. Plaintiffs request an hourly fee of $425 for Mr. Williams for 1.5 hours of work, an hourly fee of $350 for Mr. Edelson for 1.5 hours of work, and an hourly fee of $425 for Mr. Lippe for 1 hour of work. Although the declarations of these individuals may show that they have a specialized knowledge of environmental law, plaintiffs have not shown that such a specialized knowledge is necessary for the litigation of this motion nor that there were no attorneys with comparable knowledge available at the statutory rate. See 28 U.S.C. § 2412(d)(2)(A); Love, 924 F.2d at 1495. Because plaintiffs have not carried their burden on this issue, the court awards plaintiffs fees for Mr. Williams, Mr. Edelson, and Mr. Lippe's time at the statutory rate of $125 per hour.
2. Reasonable Hours
A court may only award attorney fees for those hours reasonably expended, excluding any "excessive, redundant, or otherwise unnecessary" hours. Hensley, 461 U.S. at 434. Time expended on the fee motion can be included in the award. Commissioner, INS v. Jean, 496 U.S. 154, 162 (1990).
Here, plaintiffs seek attorney fees for time spent preparing this motion (and reply) and their underlying action.
a. Fee Motion
Plaintiffs seek to recover fees for 76.3 hours for preparing the fee request motion (46.3 hours) and reply (30 hours). The majority of this time (37 hours for the motion and 20 hours for the reply) represents time Mr. Graf spent researching and preparing both documents, and the remainder of this time represents time spent by co-counsel in reviewing, revising, and supplementing these documents. See Duggan Decl. Exh. B; Olson Decl. Exh. A; Fazio Decl. ¶ 5; Graf Decl. ¶ 10; Supplemental Declaration of Michael Graf ("Graf Supp. Decl.") ¶ 4; Supplemental Declaration of Rachel Fazio ("Fazio Supp. Decl.") ¶ 2.
Defendants oppose plaintiffs' recovery of fees for the entire number of hours plaintiffs request on the grounds that plaintiffs' counsel's acts were duplicative and excessive. However, the court observes that plaintiffs reduced the number of hours for which they seek recovery in an effort to offset possible duplication or unnecessary time. See Graf Decl. ¶ 10 (counsel not requesting 30 hours expended on the motion for attorney fees); Graf Supp. Decl. ¶ 4 (counsel not requesting 25 hours expended on the reply to defendants' opposition to motion for attorney fees). Given the length of both the motion and reply, as well as the complexity of the law and facts discussed therein, the court is unpersuaded that plaintiffs' request is unreasonable.
The court awards fees for the hours requested for the work of Ms. Duggan, Ms. Olson, Mr. Graf, and Ms. Fazio for the motion for attorney fees and reply to defendants' opposition to that motion.
b. Underlying Action
The plaintiffs seek to recover fees for a total of 338.45 hours for time spent on the underlying action in this case. This includes preparing and filing two complaints, which were later consolidated into one action; preparing and attending status conferences; preparing for and litigating a discovery motion; reviewing expert reports, which entailed learning the scientific and technical issues relevant to the action; reviewing the administrative record; and preparing plaintiffs' summary judgment brief. See Fazio Decl. Exh. A; Graf Decl. ¶¶ 7-9, Exh. A; Olson Decl Exh. A; Duggan Decl. Exh. B.
Defendants contest a recovery of fees for these hours for several reasons. First, as with the fee motion, defendants assert that many of plaintiffs' counsels' hours were spent communicating with one another and reviewing each other's drafts. This time, defendants contend, resulted from "four lawyers [doing] what any one could do in a fraction of the time." Defendants' Opposition at 36. The court, however, is unpersuaded that plaintiffs' request is unreasonable as a result. The court is aware of no authority, and defendants cite to none, holding that plaintiffs' representation by multiple counsel is necessarily unreasonable. In a situation such as this one, where two actions were consolidated, it is reasonable for the attorneys familiar with the respective actions to remain involved in the case and to divide tasks among themselves. In fact, that is what plaintiffs' attorneys have done. See Fazio Decl. ¶ 5, Exh. A; Graf Decl. ¶ 7, Exh. A; Olson Decl. ¶ 7, Exh. A; Duggan Decl. Exh. B. Moreover, the plaintiffs are not seeking recovery of fees for a total of 33.4 hours, in an exercise of billing judgment. See Fazio Decl. Exh. A; Graf Decl. ¶ 9, Exh. A; Olson Decl. Exh. A. Finally, the court is unpersuaded that counsels' communications with one another represent an unreasonable use of time. On the contrary, such communications are necessary for counsel to coordinate their efforts and present complete and accurate filings to the court. The court finds that the hours for which plaintiffs seek to recover fees are not unreasonable because of the coordination required among counsel.
Second, defendants argue that plaintiffs should not recover fees for the preparation of plaintiffs' motion for summary judgment, since plaintiffs never filed the motion. The court disagrees. The defendants filed their motion to hold the case in abeyance one day before the time to file summary judgment motions closed. It is not unreasonable for plaintiffs' counsel to have worked on a summary judgment motion up until that day. Furthermore, defendants' motion for abeyance was filed almost three months after the issuance of the Ninth Circuit's decision in Earth Island Institute and eight days after the government had filed a request for rehearing in that case. The plaintiffs cannot be faulted for continuing to prepare a summary judgment motion during this time.
Finally, the defendants assert that plaintiffs should not recover fees for time spent drafting the complaints in this case, as the complaints were unreasonably long. The court has reviewed both complaints. While the complaint filed by the Californians for Alternatives to Toxics is reasonable in its length and contents, the complaint filed by Forest Issues Group is not. The latter is forty-eight pages long, containing only ten causes of action. Several of the causes of action are described in detail over many pages, and the sections describing the factual and statutory background of the case are much more extensive than is necessary for the court in understanding the basis of the complaint. As the defendants correctly point out, this complaint more closely resembles a briefing. Plaintiffs seek to recover fees for 34.2 hours of Mr. Graf's time in drafting this complaint. Given its unreasonable length, the court awards plaintiffs only fees for 13.5 hours of Mr. Graf's time, which the amount of time Ms. Olson billed for drafting her complaint for Californians for Alternatives to Toxics.
3. Litigation Expenses and Costs
The EAJA provides that the prevailing party can recover litigation expenses and costs in addition to attorneys' fees. 28 U.S.C. § 2412(a)(1); § 2412(d)(1)(A). "Expenses" includes those that are normally billed a client, such as telephone calls, postage, and attorney travel expenses. International Woodowrkers, Local 3-98 v. Donovan, 792 F.2d 762, 767 (9th Cir. 1986). Recovery is also permitted for the "reasonable expenses of expert witnesses" whose work is "necessary for the preparation of the party's case." 28 U.S.C. § 2412(d)(1)(A). Plaintiff requests a total of $2,738.43 in costs and other expenses, which includes filing fees, copying, preparation of video for trial, The defendants do not contest this. Therefore the court awards plaintiffs $2,738.43 for costs and other expenses.
IV. Conclusion
For the foregoing reasons, the court awards plaintiff's attorneys' fees and costs in the following amounts:
Sharon Duggan: 20.6 hours @ $325/hr = $6,695.00 Julia Olson: 89.5 hours @ $325/hr = $29,087.50 Michael Graf: 244.2 hours @ $325/hr = $79,365.00 Rachel Fazio (2005): 8.15 hours @ $275/hr = $2,241.25 Rachel Fazio (2006-2007): 30.7 hours @ $300/hr = $9,210.00 Dave Williams: 1.5 hours @ $125/hr = $187.50 David Edelson: 1.5 hours @ $125/hr = $187.50 Tom Lippe: 1 hour @ $125/hr = $125.00 Litigation expenses and costs: $2,738.43 Total attorneys' fees, expenses, and costs: $129,837.18 It is therefore ORDERED that plaintiff's motion for attorneys' fees and costs is GRANTED in the total sum of $129,837.18.IT IS SO ORDERED.