Opinion
Civil Action Nos. 00-12060-DPW, 00-12069-DPW
March 24, 2003
MEMORANDUM AND ORDER
The plaintiffs in these consolidated actions seeking relief, inter alia, under the Endangered Species Act, agreed to resolve the cases by stipulation concerning the timing of rule making addressing threats to right whales. They now request attorney's and expert's fees and costs of $331,732.16. The government opposes the fee and cost requests.
At the threshold, I must address the impact of Buckhannon Bd. Care Home v. W. Va. Dep't of Health and Human Res., 532 U.S. 598 (2001). In Buckhannon, the Supreme Court held that only a "prevailing party" — defined as a party whose litigation has secured a judicially enforceable material change in the legal relationship of the parties,id. at 604, — could receive fees under fee shifting regimes which turn upon the establishment of "prevailing party" status by the party seeking fees. The Endangered Species Act fee shifting provisions do not expressly turn on "prevailing party" status. Rather the ESA, 16 U.S.C. § 1540(g)(4) authorizes fee award "whenever . . . appropriate." This type of language was held by the Supreme Court beforeBuckhannon to require "some degree of success on the merits." See Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 (1983).
In the wake of Buckhannon, the Courts of Appeal have chosen to view statutory fee shifting schemes, like that of the Endangered Species Act, which contain "whenever appropriate" language as governed by theRuckelshaus standard. See, e.g., Sierra Club v. Envtl. Prot. Agency, 2003 WL 1203365 (D.C. Cir. Mar. 18, 2003) *8; Loggerhead Turtle v. County Council of Volusia County, Fla., 307 F.3d 1318, 1326 (11th Cir. 2002);Ctr. for Biological Diversity v. Norton, 262 F.3d 1077, 1080 n. 2 (10th Cir. 2001).
In this case, I find the plaintiffs did achieve some degree of success on the merits of their ESA claims. However, I also find that given the nature of the claims, the disproportionate deployment of resources and the degree of success actually achieved, an "appropriate" award of attorneys fees requires a substantial discount from the amount claimed.
In the largest sense, the plaintiffs' ESA claims concern the alleged involvement of the National Marine Fisheries Service ("NMFS") in unlawful takings of right whales through the conduct of the regulation of fisheries. The focus of the litigation on an interlocutory basis, however, was on the pace of the process NMFS was undertaking to address the takings problem. I chose for the most part not to impose a specific schedule, as plaintiffs requested, but rather to monitor the progress through status reporting and conferences. After considering defendants' scheduling of the administrative process, I did, however, at plaintiffs' insistence, impose certain mandatory milestones. In response to plaintiffs' motion for preliminary injunction, on April 23, 2001, I imposed a requirement that NMFS issue biological opinions by June 21, 2001. Ultimately, the parties' stipulation, entered as a court order on October 11, 2001, required the adoption of a rule by December 31, 2001.
In short, the plaintiffs through this litigation were able to obtain judicially sanctioned changes in the timing obligations of the defendants in the administrative process. This process was, in turn, a precondition to change in the fishery management regulations though which the defendants were implicated in violation of the Endangered Species Act. Moreover, these orders disciplining the progress of the administrative process appeared destined to lead more promptly, than would have been the case in the absence of judicial involvement, to substantive changes in fishery management regulation which would reduce the prospect of right whale takings. I am satisfied that but for the litigation conducted by the plaintiffs — and its precursor, plaintiffs' notices of intent to sue — the process would have taken longer to achieve a desired change in the substance of the defendants' conduct fairly within the purview of the Endangered Species Act.
While I am satisfied that plaintiffs' litigation substantially contributed — through judicial action — to a change in the legal position of the defendants, I am not satisfied that the entire amount of fees and costs were necessary to achieve the result. In this connection, I do find the rates plaintiffs seek to assign for the work to be appropriate and the work to have been of high quality; but I also find the amount of time and effort claimed to achieve the result cognizable for attorneys fees purposes is excessive. The defendants were moving in the direction plaintiffs sought, albeit slowly. Plaintiffs' counsel, animated by their own sense of professionalism and work ethic, spared no effort. But fee shifting under the "appropriate[ness]" standard of the ESA should recognize some measure of proportionality. What highly skilled, highly motivated and highly demanding counsel choose to devote to the larger task is not determinative as the measure of appropriateness. Rather, I must make a reasoned judgment about what was necessary and what a well functioning market would pay to achieve the judicial results to which plaintiffs contributed.
In one sense, of course, the potentially demanding prospect of litigating against highly skilled and highly motivated counsel bent on substantive victory can be said to have affected the defendants' judgment about how to respond to this litigation. But it is hardly appropriate to compensate plaintiffs' counsel for a lifetime of preparation to present themselves as demanding and principled adversaries. Similarly, playing the role of sheep dog to encourage the defendants to continue to flock in the direction they were moving — no doubt less briskly than plaintiffs wished — does not warrant compensation for preparation against all potentialities. Rather, the plaintiffs here achieved a judicially enforceable schedule which only modestly tightened what the defendants said — whether accurately or not — they would do — whether timely or not — in any event. While this constitutes more than a trivial success on the merits and was considerably more than a collateral procedural adjustment, it was no famous victory.
I have reviewed at length and in great detail the submissions of the plaintiffs regarding their request. While fulsomely staffed at least by the Humane Society plaintiffs and requiring some degree of coordination among plaintiffs' four separate law firms or litigating entities, one of which was out of state, I find nothing untoward with these arrangements as a general proposition. My reservation is with the massive deployment of resources when measured against the relatively modest result. I believe it would be artificial to apply a scalpel task-by-task to attempt to identify and extract for compensation only those tasks or portions of tasks directly related to the specific judicial actions which can be said to have changed the legal relationship at issue. Such an exercise would only give the illusion of mathematical precision where rough approximation is the most that is possible. Moreover, such an exercise would inappropriately attempt to cut those precise tasks from the muscle and sinew of the larger litigation effort which gave them vitality, force and meaning.
The most appropriate means of addressing plaintiffs' claims under the circumstances is to award a percentage pro tanto as to each billing entities' submission, a percentage which I believe fairly reflects the degree to which the plaintiffs' efforts resulted in the outcome they sought. Subject to minor adjustments noted below, that is 20 percent of the attorneys' fees requested. However, I will, again with modest adjustment, award essentially all of the disbursements.
These rates are as summarized at page 23 of the narrative "Plaintiffs' Motion for Award of Reasonable Attorney's and Expert's Fees and Costs" and supported by the several affidavits of Alan Wilson, Barbara Gruenthal, Linda Benfield, A. Lauren Carpenter and Sharon B. Young.
I will deduct from the Humane Society base attorneys fee figure $8,114.00 for Ms. Benfield's travel time and from its disbursements $1,552.00 in costs for attendance at hearings on February 27, 2001 and June 18, 2001. Given the nature of the hearings and Ms. Benfield's contributions on those occasions, I do not believe her presence was necessary. Hart v. Borque, 798 F.2d 519, 523 (1st Cir. 1986); Furtado v. Bishop, 635 F.2d 915, 922 (1st Cir. 1980). Moreover, while a substantial portion of Ms. Young's claimed time may be appropriately compensable to support the plaintiffs' degree of success in this case, I find the conclusory character of her affidavit and absence of contemporaneous time records to justify no more than half her claimed fees. See Grendel's Den v. Larkin, 749 F.2d 945, 952 (1st Cir. 1984).
Accordingly, the plaintiffs' motion for award of attorney's and expert's fees and costs is ALLOWED to the following extent:
It is hereby ORDERED that:
1. In Civil Action No. 00-12060-DPW, plaintiff Conservation Law Foundation shall recover attorneys fees in the amount of $40,046 and costs in the amount of $2,510.66; and
2. In Civil Action No. 00-12069-DPW, plaintiff Humane Society of the United States shall recover attorneys fees in the amount of $24,709, expert fees in the amount of $4,050 and costs in the amount of $1,961.