Opinion
No. CV-00-755-HU.
August 18, 2004
Julia Olson, Wild Earth Advocates, Eugene, Oregon, Brett Brownscombe, Hells Canyon Preservation Council, La Grande, Oregon, Attorneys for plaintiffs.
Karin J. Immergut, United States Attorney, District of Oregon, Stephen Odell, Assistant United States Attorney, Portland, Oregon, Val J. McLam Black, Special Assistant United States Attorney, Office of General Counsel, United States Department of Agriculture, Portland, Oregon, Attorneys for defendant.
FINDINGS AND RECOMMENDATION
Plaintiff Hells Canyon Preservation Council (HCPC) moves the court for an award of attorney's fees and costs under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A). HCPC requests a total award of $217,750.96 ($210,545.60 for attorney's fees, and $7,204.36 in costs).
The government opposes the motion, primarily on the ground that HCPC ultimately prevailed only on the claim asserted under the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq. From this, the government argues that its position was "substantially justified," so that HCPC is not entitled to any compensation at all or, alternatively, that the relief HCPC obtained is so disproportionate to the relief originally sought that HCPC's fee request is grossly excessive.
The government also asserts that HCPC's records are inadequate to establish its entitlement to the fees sought and that the rates requested are "considerably out of step" with the prevailing practice in the relevant legal community.
The court heard oral argument on the motion April 7, 2004. The parties filed supplemental briefing on April 21 and April 22, 2004.
Standards
EAJA provides that a court shall, in a civil proceeding brought by or against the United States, award fees and other expenses to a prevailing party, other than the United States, "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." The statute creates a presumption that fees will be awarded unless the government's position was substantially justified. Thomas v. Peterson, 841 F.2d 332, 335 (9th Cir. 1988). The government bears the burden of proof. Oregon Natural Resources Council v. Marsh, 52 F.3d 1485, 1492 (9th Cir. 1995).
Discussion
The government concedes that HCPC is a prevailing party, but argues that its position was substantially justified. The government also challenges the amounts claimed.
1. Substantial justification
To determine whether the government's position was substantially justified for purposes of the EAJA, the court applies a reasonableness standard. Flores v. Shalala, 49 F.3d 562, 570 (9th Cir. 1995). The standard is met if the government establishes that its position had a "reasonable basis both in law and fact." Pierce v. Underwood, 487 U.S. 552, 565 (1988);United States v. Real Property Known as 22249 Dolorosa Street, 190 F.3d 977, 984 (9th Cir. 1999).
The "position" of the government includes the agency's actions or failures to act, on which the civil litigation is based, and the government's litigating position. Meinhold v. United States Dept. of Defense, 123 F.3d 1275, 1278 (9th Cir.) , amended by 131 F.3d 842 (9th Cir. 1997); Wilderness Society v. Babbitt, 5 F.3d 383, 388 (9th Cir. 1993). Thus, even if the government's litigation position is justified, it cannot meet its burden if the underlying conduct was not. Wilderness Society, 5 F.3d at 388. And even when some aspects of the government's position were substantially justified, the court may still find that the government's overall position was not. See United States v. Marolf, 277 F.3d 1156 (9th Cir. 2002).
If the government's position violates the Constitution, a statute, or its own regulations, a finding that the government was substantially justified is an abuse of discretion,Mendenhall v. National Transp. Safety Bd., 92 F.3d 871, 874 (9th Cir. 1996), unless the government proves that the regulation violated was ambiguous, complex or required exceptional analysis. Oregon Natural Resources Council v. Madigan, 980 F.2d 1330, 1332 (9th Cir. 1992).
HCPC asserted that the government violated NEPA when it failed to conduct an Environmental Assessment (EA) and/or prepare an Environmental Impact Statement (EIS) for the proposed private land regulations when they were promulgated in 1994. NEPA requires federal agencies to prepare an EIS for all major actions significantly affecting the quality of the environment. 42 U.S.C. § 4332(2)(c); 40 C.F.R. §§ 1508.27(b)(7), 1508.25(a). The court held that the government violated NEPA because it "unreasonably failed to conduct an appropriate environmental evaluation of the impact of the [private land] Regulations," and that the "record before the court establishes that the USFS had been aware for years before the promulgation of the Regulations of the potential impact arising from the use of feedlots and cattle-grazing on private lands within the Recreation Area in the vicinity of the Imnaha River." Findings and Recommendation entered February 13, 2003, pp. 7, 11, adopted May 13, 2003.
The government does not assert that its underlying actions were reasonable, either in law or in fact, and the history of this litigation provides the government with scant grounds for such an assertion. As the court has related in other decisions, this litigation was the third lawsuit over a period of 16 years in which HCPC and others had attempted to compel the Forest Service to promulgate private land regulations for the Imnaha River that comply with the law. The government has lost on the merits of each action. Regulations adopted after appropriate environmental evaluations still do not exist.
Further, because the court found in this case that the government's conduct violated NEPA, a substantial justification finding would be an abuse of discretion. Mendenhall, 92 F.3d at 874 (9th Cir. 1996). The government argues that the court should nevertheless find its litigation position substantially justified because the court's decision was wrong:
It was only through this considerably novel "bootstrapping" theory, however, whereby the Court was asked to evaluate not the effects of the agency action as it had actually been adopted, but as Plaintiff asserted it should have been, that Plaintiff was able to prevail on its NEPA claim. Moreover, although the Court apparently relied on Plaintiff's approach in ruling against Defendants on the NEPA claim, this is insufficient to establish that Defendants' position was not substantially justified, particularly where that position was grounded in the much more traditional approach to analyzing NEPA effects. . . . In addition, taken as a whole, it is hard to resist the conclusion that the collective weight and authority of the arguments Defendants made in defense of their NEPA position were substantial, [citation to Forest Service's briefs omitted] particularly as that term has been construed by the Supreme Court. See Pierce, 487 [U.S.] at 564-65.
Defendants' Response to Motion for Award of Attorneys' Fees and Costs, p. 8.
The government argues further that its lack of success does not necessarily indicate that the government was not substantially justified. In support of the argument, the government citesFederal Election Comm'n v. Rose, 806 F.2d 1081, 1089 (D.C. Cir. 1986) and Gregory C. Sisk, The Essentials of the Equal Access to Justice Act, 56 La. L.Rev. 1, 24-28 (1995) (section entitled "The `Substantial Justification' Inquiry Requires a Fresh Look at the Merits").
The government's citation to the Rose case is unhelpful; the language cited is a general discussion of substantial justification in the context of a finding that an agency's actions were arbitrary and capricious. The Louisiana Law Review article calling for a "fresh look" at the substantial justification standard is not binding authority.
The government also argues that its position was substantially justified because HCPC did not prevail on all of its claims. It relies on Commissioner v. Jean, 496 U.S. 1154 (1990), particularly quotations to the effect that the statutory language of the EAJA "buttresses the conclusion that only one threshold determination for the entire civil action is to be made," and that the EAJA "favors treating a case as an inclusive whole, rather than as atomized line items." Id. at 159, 161-62.
The government's reliance on Jean is misplaced. The issue presented in Jean was whether the EAJA required the court to make separate findings on substantial justification for both the merits and the fee litigation. The Court noted that the issue presented by the case was a very narrow one, generated by the unusual procedural posture of the case. 496 U.S. at 156. The Court held that the district court was not required to "make a second finding of `no substantial justification' before awarding . . . any fees for the litigation." The Jean Court rejected the government's argument that it could assert a substantial justification defense "at multiple stages of an action," finding a "complete absence of any textual support" in the EAJA for this position. 496 U.S. at 158-59.
The government relies here on Jean for a position that actually contradicts the case's holding. In urging the court to evaluate substantial justification for each separate claim asserted by HCPC, the government disregards the Supreme Court's admonition not to break the litigation into "atomized line items" and suggests that the burden be shifted onto HCPC to prove the absence of substantial justification for each "line item." This approach is clearly in conflict with Jean, as well as the weight of authority that substantial justification is not determined by the degree of the plaintiff's success. See, e.g., Texas State Teachers Assn. v. Garland Independent Sch. Dist., 489 U.S. 782, 790(1989) (the degree of the plaintiff's success" does not affect "eligibility for a fee award.") (emphasis in original); Air Transport Ass'n of Canada v. FAA, 156 F.3d 1329, 1333 (9th Cir. 1998) (Congress could not have intended that a prevailing party should not not recover fees because the government's action was substantially unjustified on only one of several possible grounds). The government has not demonstrated that its underlying conduct and litigation position were reasonable both in fact and in law. HCPC is therefore eligible for a fee award under EAJA.
2. Fee amount
The calculation of a "reasonable hourly rate" is different under the EAJA than under other fee-shifting statutes such as 42 U.S.C. § 1988. Under § 1988, the burden is on the claimant to produce evidence that the rate sought is in line with prevailing market rates in the relevant community. Sorenson v. Mink, 239 F.3d 1140, 1145 (9th Cir. 2001). But under the EAJA, attorney fee amounts are statutory. Id. Congress has capped the rate for a fee award at $125 per hour for all cases filed after March 29, 1996 "unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A). The court must use the versions of the CPI for the years in which the hours were expended, rather than the version that is current at the time it enters the award. Sorenson, 239 F.3d at 1148.
The government asserts that, for all HCPC attorneys, the court should award fees based on the 2002 Oregon State Bar Economic Survey (the Survey), rather than the statutory rates, as HCPC proposes. However, the EAJA's statutory rates are not based on the market in the relevant community, so the Survey is not relevant.
HCPC attorney Julia Olson has requested that she be awarded fees higher than the statutory rate, on the ground that "special factors" apply to her, including special expertise and unavailability of other counsel. The Survey does have some relevance to her fee request, and will be discussed in that context.
The government argues that because HCPC did not obtain relief under the ESA or the HCNRA Act claims, it is "entirely appropriate for an across-the-board reduction of at least 50% in the hours the Court finds that Plaintiff has adequately documented." Defendants' Response p. 10. The court will return to this argument after its analysis of the government's objections to HCPC's documentation and to specific fee requests. These objections are: 1) HCPC failed to exclude hours for time spent on unsuccessful claims; 2) HCPC failed to exclude time spent on tasks unrelated to the defendants; 3) HCPC has improperly used block billing; 4) many of HCPC's billings are "vague and obscure;" 5) HCPC has not excluded all time spent on clerical or secretarial tasks; 6) HCPC failed to keep contemporaneous records; 7) HCPC attorney Brownscombe should exclude hours spent as a staff attorney rather than a litigator; 8) time spent by Brownscombe before he was admitted to the bar should be excluded; and 9) HCPC's claim that it has deducted "inefficient time" from its billing statements is unsubstantiated. The government argues that this "multiplicity of problems" warrants an across-the-board reduction of compensable hours by 50%.
HCPC requests fees for three lawyers — Jamie Jefferson, Brett Brownscombe, and Brian Litmans — at the statutory rate adjusted for the cost of living. The claims of these three lawyers will be discussed first. The court will then analyze the "special factors" fee request of Julia Olson.
Ms. Jefferson claims a total of 214.6 hours, at a rate of $140 per hour, for work performed in 2000; a total of 317.7 hours, at a rate of $145 per hour for work performed in 2001; and a total of 181.3 hours, at a rate of $147 per hour, for work performed in 2002. She states that these rates are "based on the standard EAJA rate of $125/hour adjusted upward for the cost of living increase according to the consumer price index for western urban areas." Her total fee request is $103,667.
Mr. Brownscombe claims a total of 156.9 hours for work performed on this case, at a rate of $70 per hour for work performed in 2000, $145 per hour for work performed in 2001, $147 per hour for work performed in 2002, and $151 per hour for work performed in 2003. His total fee request is $22,326.
Brownscombe's original request totaled $22,817.00, but HCPC concedes Brownscombe should be compensated at the rate of $70 per hour — paralegal rates — for work done before he was admitted to the bar.
Mr. Litmans claims a total of 32.5 hours at a rate of $147 per hour and 1.3 hours at a rate of $151 per hour. His total fee request is $4,973.80.
a. Time spent on unsuccessful claims
The HCPC attorneys have provided time sheets with two columns, one showing time expended on matters for which fees are requested and one showing time expended on matters for which fees are not requested. The government has objected to some specific entries requesting fees for the unsuccessful claim asserted under the Endangered Species Act (ESA), 16 U.S.C. § 1536(a)(2). HCPC concedes that it is not entitled to fees for time spent on the ESA claim, and acknowledges that the entries reflecting time spent on the ESA claim were mistakenly included, except for two of Ms. Jefferson's entries in May of 2000, where HCPC asserts that the time expended is compensable because the government defended the HCNRA claim by alleging that the ESA adequately protected resources in the area.
I recommend that the following time claimed for the ESA claim be excluded:Date Atty Task Hours (Disallowed)
09/18/00 JO Review supp. motion to dismiss (ESA) (1.0) 04/16/01 JO t/c with Jack Sterne re appealing ESA issue (.2) 05/26/00 JJ Phone calls to potential contacts, FWS and NMFS (2.0) 05/31/00 JJ Online research re: endangered fish and critical habitat designations @ Imnaha area on FWS and NFMS web sites (1.0) 08/17/00 JJ Draft motion to amend complaint; mpa [memorandum of points and authorities] in support (5.5) 08/21/00 JJ Review documents discuss with Julia (2.5) 08/22/00 JJ Continue draft motion to amend (4.5 hours), drafted order for joint stip (.50); phone call with Ric and Julia (.75) (5.75) 08/28/00 JJ Draft amended complaint (final revisions) (.45) 08/29/00 JJ Phone call with Tom Lee re: meet and confer requirement for filing motion to amend (10 min.) (.11) 09/06/00 JJ Conference with legal intern re: ESA mootness issue (.33) 09/07/00 JJ Drafted letter to USDA, NMFS, and FWS on need to consult under sec. 7 of ESA on private land regulations, etc. (2.0) 11/08/00 JJ Phone call with EarthJustice Seattle on declarations from Pacific Rivers Council case (.25) 11/20/00 JJ Draft letter to NMFS, follow up on unanswered letter re: status of endangered fish and consultation (1.0) 01/19/01 JJ Conference with client re [letter to NMFS/FWS on consultation process (1.0) 09/26/00 BB ESA Claim (1.0) 09/27/00 BB ESA Claim Research; phone calls (1.0) 09/29/00 BB ESA Claim research, conversations (.8) 09/29/00 BB ESA Claim research (1.3) 09/30/00 BB Memos to JJ and JO re ESA (.8) 09/30/00 BB Research on ESA Claim (1.2) The government contends that the court should exclude all the time expended before the "first reference to NEPA" in the time records because HCPC admitted that it was unaware of a possible NEPA claim until it reviewed the administrative record, after the filing of the amended complaint. I disagree with this contention, because it necessarily requires the court to exclude time reasonably spent investigating the facts of the case and reviewing the administrative record — tasks necessary for the NEPA claim. Moreover, I note that while the NEPA claim is the only one on which HCPC prevailed, HCPC did not lose on the merits of the HCNRA Act claim. The HCNRA Act claim survived the government's motion to dismiss the amended complaint and was finally mooted by the court's grant of summary judgment in HCPC's favor on the NEPA claim.Nevertheless, HCPC voluntarily dismissed its second claim for relief and the government inflicted substantial damage on HCPC's other claims in its motion to dismiss. The court dismissed HCPC's third claim for relief, based on res judicata, and its fifth and sixth claims for relief, based on the ESA. I have therefore excluded approximately half of the time HCPC spent drafting the original and first amended complaints (to the extent this time has not already been excluded as part of the ESA claim) and opposing the government's motion to dismiss the amended complaint. Four of the six claims brought by the plantiff have not been successful here. I must decide how much of the atorney time cliamed should be deleted as having been spent on these unsuccessful claims. While the time claimed could be reduced by two thirds on this record, to reflect four unsuccessful claims out of six, I have not done that. Where I could specifically identify time being spent on the ESA claim, I have deleted that time elsewhere. The time records submitted often did not segregate the time spent on each claim well. The time records also suggest that some of the work was relevant to more than one claim. My judgment is that a reduction of 50% of the time spent on the above mentioned tasks so as to arrive at the reasonable fees to award. I recommend that the following time be excluded:Date Atty Task Hours (Disallowed)
All of the time for this entry is excluded because the time spent on the motion to intervene — which the court has excluded entirely, infra — cannot be separated from the time spent on unsuccessful claims, for which only half the time has been excluded.
Eight hours to meet and prepare for hearing for three people is too long and therefore an additional reason for this adjustment is time not reasonably spent.
See footnote 3, additional preparation time is excessive as well.
See footnote 3, additional preparation time is excessive as well.
Given the amount of time spent from 1/31/01 to 2/26/01 of about 127 hours by Jefferson, or over 3 work weeks on preparing objections to the FR, an additional reason for exclusion is too much time spent on drafting the objections.
Compiling a document, filing, copying, and reading exhibits are clerical functions and should be excluded for that reason as well.
The government urges the court to exclude the time spent on three categories of activity. The first is opposing the intervention of Wallowa County. The second is preparing and reviewing the expert declarations, "given that the Court expressly disclaimed any reliance on them in its Summary Judgment Order based on its finding that they were not necessary to its decision, but might instead be relevant to the NEPA process for the Private Land Regulations," and because under the Administrative Procedures Act, review of a NEPA claim is limited to the administrative record. The third is activities the government characterizes as "background discussions" with various agency officials, which the government asserts should not be compensable "at least in the absence of a compelling rationale about how such discussions directly facilitated Plaintiff's litigation of this case."
HCPC counters that the time spent opposing the intervention of Wallowa County is compensable under Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991). However, the holding of Love goes directly against HCPC:
The government argues that the attorney's fees attributable to opposing the intervenors' [motion to stay the injunction] should not be recoverable against the government because the government took no position on the motion to stay. We agree.
* * *
[W]here plaintiffs are litigating an issue and are opposed only by private defendants, a fee award against the government would be manifestly unfair and contrary to historic fee-shifting principles.
I recommend that the time spent opposing Wallowa County's motion to intervene be excluded:Date Atty Task Time Disallowed)
08/21/00 JO Discuss intervention with Jamie (.5) 08/22/00 JO Review motion to dismiss and intervention motion (1.0) 08/29/00 JO Review/edit opposition to intervention; discuss with Jamie (.9) 07/24/00 JJ Phone call from Scott Horngren re: intervention motion (.17) 08/17/00 JJ Review and analyze motion to intervene (5.0) 08/25/00 JJ Legal research re opposition to intervention (6.0); phone calls to prior counsel re: motion to dismiss and intervention motion (1.5)drafted mpa and declaration (11.0) 08/27/00 JJ Cont. drafting opposition to motion to intervene (9.0) 08/28/00 JJ Draft opposition brief for motion to intervene (4.05) (4.05) 08/29/00 JJ Draft opposition to intervention (5); conference with Julia and edited opposition (.5) (5.5) 10/05/00 JJ Prepare for oral argument on intervention, including some additional research (5.83); outline argument (2.0); calls to Klamath Siskiyou Wildlands re their intervention case (10 min) and opinion; conference with Pete Frost (1.0) (8.0) 10/06/00 JJ Oral argument (2.0) With respect to the time spent preparing and reviewing expert witness declarations, HCPC argues that it had the burden, en route to success on its NEPA claim, of showing that the regulations could significantly affect the environment. I agree with HCPC that this time should be charged against the government, because it was necessary for the NEPA claim.Although the government takes issue with Mr. Brownscombe's "background discussions" with agency personnel, it only objects to a single entry from August 3, 2001, in which Mr. Brownscombe spent 0.6 hours discussing with a DEQ official why the Imnaha River is "water quality limited" under the Clean Water Act. This discussion was relevant to the issue of livestock impact on the river, and therefore necessary to HCPC's threshold showing on the NEPA claim.
c. Block billing
The government urges the court to exclude all entries by Ms. Olson and Ms. Jefferson that show "block billing," arguing that this form of billing is improper. The court has long disapproved block billing, in which several different tasks are grouped and billed in one large block of time. See Frevach Land Co. v. Multnomah County, Civ. No. 99-1295-HU, 2001 WL 34039133 at *9 (D. Or. December 18, 2001). Ms. Olson and Ms. Jefferson have submitted several block billing entries. For example, in Olson's entry of March 20, 2002 of "Draft stipulation re: record and email to Val Black; t/c with Val's secretary re: edits; finalize stipulation; draft letter re: same;" Jefferson's entries for February 13, 2001 claims 15 hours to: "Draft Brief; declarations; edited; final research; inclusion of additional cases;" February 26, 2001 claims eight hours for: "Respond to magistrates order re: objections; t/c with Julia; draft alternative motions; and objections to order;" and the ten hour entry for May 23, 2002 states, "Draft [motion for summary judgment]; final edits; read emails from court re: timing of filing; final preparation for filing, inc. copying, exhibits, etc.; discuss same with Julia."
In Frevach, I concluded that any block billing entry of three or more hours, containing four or more tasks, prevent the court from assessing the reasonable number of hours spent on a given task. Similarly, I concluded that any block billing entry of three or more hours and containing two or more tasks, when one of the tasks could have taken anywhere from a small to a substantial amount of time, also prevent the court from determining the time spent. I have listed in the table below all "block billed" hours that have been disallowed on one of these two grounds.Date Atty Tasks Hours (Disallowed)
08/21/01 JO T/c with Jamie re motion to amend reply brief; division of drafting; drafted portions of reply (4.4) 09/19/01 JO Draft facts and work on decs (9.1) 05/18/02 JO Draft facts, regulatory history and content and reviewed record re: same (9.0) 05/21/02 JO Draft brief: jurisdiction, NEPA; input exhibits; reviewed court's order on amending NEPA claim for NEPA argument (10.0) 07/19/02 JO Review opp. briefs and prepare reply brief; email experts re: same (5.2) 02/26/01 JJ Respond to magistrates order re: objections; t/c w/Julia; draft alternative motions; and objections to order (8.0) 05/14/02 JJ Review record Draft; review and finalize kaz thea; review fouty dec; review ric bailey dec; review literature from brett; draft brief (4.5) 05/16/02 JJ Draft Mot SMJ; outline brief; review info from brett additional forest service dos, EPA data, etc. (3.0) 05/17/02 JJ Draft Mot SMJ; case research and review on APA standards; meet with Julia re same (6.0) 05/20/02 JJ Draft Mot SMJ; review and finalize declarations for thea, mccullough, carter; draft portions of brief on failure to consider important aspect of problem and improper deference to w.c. (10.0) 05/22/02 JJ Draft Mot. SMJ; edited entire brief, once twice; began supporting documentation, inc. motion, my declaration, mot. for extension of page limit, pos (9.5) 05/23/02 JJ Draft Mot. SMJ; final edits; remails from court re: timing of filing; final preparation for filing, inc. copying, exhibits, etc.; discuss same with Julia (10.0) d. "Vague and obscure" entriesThe government argues that many of HCPC's entries are so vague and obscure that it cannot "make heads or tails of them." It offers the single example of Jefferson's entry for February 8, 2001, which reads: "Draft Objections (10.0) w/some minor legal research (2.0)." The entry apparently refers to objections to the court's Findings and Recommendations. Half of the time from this entry has been excluded to represent time spent on unsuccessful claims. I also note an additional reason to make this exclusion is that it was inefficient time spent. No further reduction is appropriate.
e. Time spent on clerical or secretarial tasks
The government asserts that HCPC has charged for time spent on clerical or secretarial tasks. In general, I agree, except for Ms. Olson's entry for November 6, 2000 ("Email clients re: info from EPA, DEQ."). I recommend that the following time be disallowed as representing clerical tasks:
This time is already excluded as block billing.
The government contends that HCPC's records cannot be contemporaneous because there are an "inordinate" number of days with whole-hour entries in Ms. Jefferson's time records and many days for which large blocks of time are claimed in whole numbers ( see, e.g., Jefferson entries for August 25, 2000 (11 hours), September 15, 2000 (11 hours), December 9, 2000 (11 hours), December 11, 2000 (14 hours), February 2, 2001 (12 hours), February 9, 2001 (12 hours) and February 13, 2001 (15 hours). See also Ms. Olson's entry for February 13, 2001 (16.5 hours). HCPC's lawyers each state in their declarations that they did, in fact, keep contemporaneous records.
The time for that day is already excluded, however, because it was for time spent on the motion to intervene.
Half of this time has been excluded as being spent on unsuccessful claims.
Of the three hours for review documents and formulate strategy, half of that time was excluded for time spent on unsuccessful claims.
Half of this time has been excluded as being spent on unsuccessful claims.
Half of this time has been excluded as being spent on unsuccessful claims.
Half of this time has been excluded as being spent on unsuccessful claims.
Half of this time has been excluded as being spent on unsuccessful claims.
It is the fee claimant's burden to demonstrate that the number of hours spent was "reasonably necessary" to the litigation and that counsel has made a good faith effort to exclude from the fee request hours that are "excessive, redundant or otherwise unnecessary." Hensley v. Eckerhart, 461 U.S. 424, 434 (1983).
Although many of the offending entries have already been reduced or excluded entirely for other reasons, I remain unpersuaded that HCPC has met its burden of demonstrating that the number of hours spent were "reasonably necessary." Olson and Jefferson's time records show that they spent almost 47 hours responding to Wallowa County's motion to intervene in August and October 2000. They spent over 162 hours responding to the defendants' motion to dismiss between August and December 2000. They also spent nearly 180 hours on objections to the Findings Recommendation. All of the time spent on the motion to intervene has been disallowed, supra, and half of the time expended on the motion to dismiss and the objections to the Findings Recommendations has been disallowed, so I have not disallowed any more time with respect to these tasks.
However, I note that Olson and Jefferson spent at least 239 hours on the cross motions for summary judgment filed in May 2002, with an additional 30 some hours being spent opposing the defendants' motion to strike. Approximately 79 of the hours spent on the cross motions for summary judgment have been excluded on other grounds, primarily for block billing. However, I find that in excess of 160 hours is too much time to reasonably spend on this task. The cross motions for summary judgment dealt with only two claims, the NEPA claim and the claim under the HCNRA Act. According to their affidavits, both Olson and Jefferson have specialized in environmental law since they began to practice. Ms. Jefferson states that she has specialized in litigation under NEPA, the ESA and the National Forest Management Act. Ms. Olson states that as of 2003, she had successfully litigated 10 cases involving NEPA. With such extensive experience, it was not reasonable for these lawyers to spend the 160 hours remaining (much less the claimed 239 hours) on summary judgment practice involving only two claims for relief, based on familiar statutes and straight forward theories. I recommend that 25 of Olson and Jefferson's combined hours on the summary judgment proceedings be excluded from their 2002 time claimed.
g. Should Brownscombe exclude hours spent as a staff attorney rather than as a litigator?
The government asserts that many of Brownscombe's entries appear to "reflect more his role as traditional in-house counsel rather than as a front-line litigator," such as his entry of 1/31/01 ("Review Magistrate Judge Hubel's Findings and Recs + note taking); 8/3/01 ("memo to Jamie and Julia"). Brownscombe states in his Second Declaration that throughout the course of this litigation he has served in the capacity of HCPC's staff attorney, becoming a counsel of record on January 14, 2003 when Jefferson filed a notice substituting Brownscombe for herself. He states that he had already been working on the case in his capacity as an attorney before that time.
The government argues that Brownscombe should exclude all the time for which he claims fees that predates his substitution for Jefferson as counsel of record. However, Brownscombe states in his second declaration that before his substitution he was working on the litigation in his capacity as an attorney, and that he specifically excluded all the hours he spent doing tasks associated with his job as conservation director such as policy discussions with other organizations, media outreach, writing newsletter articles, traveling, and updating and advising HCPC's staff, executive director and board of directors. He further states that any time which appears on his timesheets for correspondence with agency officials related to his work of gathering evidence necessary for litigation. HCPC asserts that in-house attorneys are entitled to recover fees for legal services when they actually perform the work of an attorney in the case, as opposed to acting as a client. See National Gypsum Co. v. Steel Systems Int'l, Inc., 1988 WL 135780 (D. Or. December 13, 1988) and Blum v. Stenson, 465 U.S. 886, 890 (1984). HCPC also argues that an attorney need not be an attorney of record in the case to be compensated under the EAJA, citing Bullfrog Films, Inc. v. Catto, 815 F. Supp. 338, 343 n. 8 (C.D. Cal. 1993). HCPC contends that even the authority the government cites for the proposition that one must be an attorney of record to recover fees, Eli Lilly v. Zenith Goldline Pharm., 264 F. Supp.2d 753, 777 (S.D. Ind. 2003), does not support its argument because in that case the court's denial of fees was not based on the absence of the attorney's name from the pleadings, but rather because he "did not function as trial counsel."
I find the government's arguments unpersuasive and recommend that Brownscombe's fee request not be reduced on this basis. h. Time claimed for Brownscombe before his admission to the bar
Brownscombe was admitted to practice in November 2000. He seeks fees for 20.6 hours spent on the case before that time. HCPC concedes that the government is correct that Brownscombe cannot claim compensation at the rates applicable to attorneys for hours spent on the case before he was admitted to practice law. However, HCPC asserts that he is entitled to fees at paralegal rates, $70 per hour. HCPC agrees that his overall fee award should be reduced by $1,442.
However, I have recommended the exclusion of nearly all Brownscombe's time between September 26, 2000 and September 30, 2000, because it was expended on the ESA claim. I recommend his remaining time before November 2000, 9.4 hours, be compensated at $70 per hour.
i. Compensation at rates comparable to the Survey rather than the EAJA
The government takes issue with HCPC's entitlement to the statutory rate set out in EAJA, arguing that these rates appear to be "higher and less accurate" than the rates set out in the Survey. Congress has explicitly provided for a statutory rate under EAJA. The statutory rate is the rate the court must apply. I recommend that the argument be rejected.
j. Across-the-board 50% reduction in the number of compensable hours
The government urges the court to reduce HCPC's hours by 50% because of a "pattern of inadequacy and inconsistencies in the billing statements of Plaintiff's counsel." I disagree with the government that such a sanction is warranted. Inconsistencies, errors, unsuccessful claims, and inefficient time have been addressed on the basis of specific entries.
k. Reduction of Brownscombe's rate to an average hourly rate based on his salary
The government argues that because Brownscombe is a staff attorney for a nonprofit organization, his hourly rate should be reduced to reflect his salary. I disagree. The court is required to set fees in the amount provided for by the EAJA unless special circumstances require otherwise. I recommend that Brownscombe's rates — after his admission to the bar — reflect the statutory rate provided by the EAJA.
l. Should Olson be compensated at a rate higher than the EAJA statutory amount based on "special factors?"
HCPC seeks compensation for Olson at her "ordinary market rate" of $175 per hour for work performed in 2000, $185 per hour for work performed in 2001, $200 an hour for work performed in 2002, and $215 per hour for work performed in 2003. HCPC contends that Olson should be awarded fees in excess of the statutory rate based on special factors, particularly her possession of unique skills required for environmental litigation.
Three requirements must be met before the statutory rate can be exceeded on this ground: first, the attorney must possess distinctive knowledge and skills developed through a practice specialty; second, those distinctive skills must be needed in the litigation; and third, those skills must be unavailable elsewhere at the EAJA statutory rate. Dolorosa Street, 190 F.3d at 984.
The attorney seeking an upward adjustment for her fees bears the "initial burden" of supporting by affidavits of attorneys or otherwise the "reasonable market rate" for the legal services she has performed. Mendenhall, 213 F.3d at 472. The government must then present some kind of rebuttal evidence to prove otherwise.Id.
Olson supports her fee request with the declaration of Peter Frost, an environmental law attorney and former adjunct professor of law at Lewis and Clark and University of Oregon. Frost has co-counseled with Olson on other environmental cases.
The government counters Frost's declaration with the charge of self-interest, based on Frost's status as an "environmental interest-group practitioner." Defendants' Response, p. 18. The government disclaims any intention of questioning Frost's "veracity or integrity in any matter whatsoever," but adds that it
cannot be gainsaid that a declaration from an attorney who practices in the same field and who also concededly seeks fees from the government in litigation on a regular basis stands to gain if the baseline for hourly rates for those in his practice area and geographic region inch up for his colleagues in related litigation. See Discussion in James P. Schratz, How to Win a Fee Petition, Fed. Lawyer, Aug. 2001 at 29, 30-31.Id. This is argument, not the requisite rebuttal evidence.
While the government has not produced evidence that is sufficient to rebut the evidence HCPC proffers from Frost, I have considered the questions relevant to the issue of an enhanced fee: distinctive knowledge and skills, whether those skills are needed in the litigation, and whether those skills are unavailable elsewhere at the statutory rate.
Ms. Olson was admitted to the California bar in December 1997. As the government points out, this means that at the time this case was being litigated, she had 2½ to 5½ years of experience. The Survey indicates that the average billing rate in 2001 for an attorney in Eugene, Oregon, who had been admitted to practice for less than three years was $104 per hour, and for those who had been admitted 4-6 years, $121 per hour.
Although the government concedes that when accounting for specialty, attorneys practicing real estate/land use/environmental law in the Eugene area had an average hourly billing rate in 2001 of $185 per hour, it argues that Olson is not entitled to such a rate because of her relative inexperience.
HCPC counters, first, that the applicable rates should not be those prevailing in Eugene, but rather in Portland, where the litigation took place. The Survey shows that Portland attorneys in the real estate/land use/environmental law category charge between $180 and $309 per hour. HCPC argues that applying the Survey to Olson's hourly rates of $175 in 2000, $185 in 2001, $200 in 2002, and $215 in 2003 "would put her, for 2002 as the year in which the Survey was published, charging $25 less per hour than the median" and in "roughly the 38th percentile of attorneys in the field."
Although Olson is a specialist in environmental litigation, the time records HCPC has submitted show that she was, throughout this litigation, assisted by two other lawyers — initially, by Ms. Jefferson and Mr. Brownscombe and, later, by Mr. Brownscombe and Mr. Litmans. I note that there are many instances in these attorneys' records where Ms. Olson's tasks and responsibilities are interchangeable with those of the other attorneys, particularly those of Ms. Jefferson. For example, Ms. Olson and Ms. Jefferson were both engaged in responding to the government's motion to dismiss in September 2000. During that time, they did the same work: both reviewed the government's motion, drafted portions of the brief, did legal research, and edited the brief. The time records for this period show several entries in which Olson and Jefferson conferred with each other about legal theories and about the briefs themselves. In August and September 2001 and from May to September 2002, Ms. Olson and Ms. Jefferson both worked on HCPC's motion for summary judgment. Again, they conferred with each other on several occasions, and both worked on reviewing the record, drafting, and legal research. It was sometimes Ms. Jefferson, not Ms. Olson, who argued motions before the court. See, e.g., Jefferson's entries for October 6, 2000 and December 12, 2000.
On this record, I see nothing to indicate that Ms. Olson had a level of expertise or experience sufficient to justify singling her out for departure from statutory rates. In view of her apparent interchangeability with Ms. Jefferson, there is also no evidence that Ms. Olson's particular skills were crucial to this litigation or unobtainable from her co-counsel, particularly Ms. Jefferson. I recommend that EAJA rates be applied to Ms. Olson as well as to the other attorneys of record in this case.
Ms. Jefferson's affidavit states that she was admitted to the California bar in December 1998 — only a year after Ms. Olson was admitted — and admitted to the Oregon bar in May 2000.
Summary
Ms. Olson is entitled to compensation as follows: 32.15 hours in 2000, at a rate of $140 per hour, or $4,501; 58.65 hours in 2001, at a rate of $145 per hour, or $8,504.25; 152.5 hours in 2002, at a rate of $147 per hour, or $22,417.50; and 48.4 hours in 2003 at a rate of $151 per hour, or $7,308.40.
Ms. Jefferson is entitled to compensation as follows: 87.41 hours in 2000, at a rate of $140 per hour, or $12,237.40; 238.5 hours in 2001, at a rate of $145 per hour, or $34,582.50; 121.8 hours in 2002, at a rate of $147 per hour, or $17,904.60 and 6.03 hours in 2003 at a rate of $151 per hour, or $910.53.
Mr. Brownscombe is entitled to compensation as follows: 9.4 hours in 2000, at a rate of $70 per hour, or $658; 30.8 hours in 2001, at a rate of $145 per hour, or $4,466; 12.3 hours in 2002, at a rate of $147 per hour, or $1,808.10; and 7.5 hours in 2003, at a rate of $151 per hour, or $1,132.50.
Mr. Litmans is entitled to compensation for 32.5 hours in 2002 at a rate of $147 per hour, or $4,777.50. Mr. Litmans seeks fees in the amount of $196.30 for time spent on the fee request, but these claimed hours are undocumented and therefore disallowed. I recommend that HCPC be awarded $121,208.28 as attorney's fees.
HCPC requests $7,204.36 as costs. The EAJA permits a judgment for costs "as enumerated in section 1920 of this title." 28 U.S.C. § 2412(a)(1). Under 28 U.S.C. § 1920, the following costs are recoverable: 1) fees of the clerk and marshal; 2) fees of the court reporter "for all or any part of the stenographic transcript necessarily obtained for use in the case;" 3) fees and disbursements for printing and witnesses; 4) fees for exemplification and copies of papers "necessarily obtained for use in the case;" 5) docket fees. The court may tax witness fees as costs against the losing party, but unless otherwise explicitly provided by statute, the award is limited to $40 per day plus travel expenses in some circumstances. Lovell v. Chandler, 303 F.3d 1039, 1058 (9th Cir. 2002); 28 U.S.C. §§ 1920, 1821.
HCPC seeks reimbursement for long distance telephone, postage, Federal Express, fax, mileage, parking, air travel, legal research, and office supplies. These costs are not recoverable under § 1920 and should be disallowed. HCPC also seeks expert witness fees in the amount of $1,557; this amount should be reduced to $40. I recommend, therefore, that $4,297.46 in costs be disallowed.
HCPC has not segregated travel expenses from the expert witness fee request, so I have not recommended that they be reimbursed.
I recommend that HCPC be awarded $121,208.28 as attorney's fees and that HCPC be awarded $2,906.90 as costs. I further recommend that judgment be entered for HCPC in these amounts.
Scheduling Order
The above Findings and Recommendation will be referred to a United States District Judge for review. Objections, if any, are due September 2, 2004. If no objections are filed, review of the Findings and Recommendation will go under advisement on that date. If objections are filed, a response to the objections is due September 16, 2004, and the review of the Findings and Recommendation will go under advisement on that date.