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League of Wilderness Defenders/Blue Mountains Biodiversity Project v. United States Forest Service

United States District Court, D. Oregon

July 15, 2014

LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, Plaintiff,
v.
UNITED STATES FOREST SERVICE and KENT CONNAUGHTON, Regional Forester, Pacific Northwest Region of the U.S. Forest Service, in his official capacity, Defendants.

R. Scott Jerger, Field Jerger LLP, Portland, OR and Thomas C. Buchele, Earthrise Law Center, Portland, OR, of Attorneys for Plaintiffs.

Robert G. Dreher, Acting Assistant Attorney General, Environment and Natural Resources Division, Jason A. Hill and Kent E. Hanson, U.S. Department of Justice, Environment and Natural Resources Division, Washington, D.C., S. Amanda Marshall, United States Attorney, and Stephen J. Odell, Assistant United States Attorney, District of Oregon, Portland, OR, of Attorneys for Defendants.

OPINION AND ORDER ON FEES

MICHAEL H. SIMON, District Judge.

Plaintiff League of Wilderness Defenders-Blue Mountains Biodiversity Project ("LOWD") filed an application under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), for attorney's fees and law student fees in the amount of $185, 245.50 and for expert witness fees in the amount of $5, 421. Dkts. 98, 128, 129, 140.[1] The United States Forest Service and its Regional Forester for the Pacific Northwest Region (collectively, "Forest Service" or "United States") object, arguing that no fee award should be granted to LOWD because the actions of the United States were substantially justified and LOWD is not eligible to receive fees under the EAJA. The United States also argues that, to the extent the Court is inclined to award any fees, the amount of fees requested by LOWD is unreasonable and should be reduced. For the following reasons, LOWD's application (Dkt. 98) is granted in part and LOWD is awarded attorney's fees and law student fees in the amount of $174, 278.90 and expert fees in the amount of $5, 421.

STANDARDS

The EAJA authorizes the payment of attorney's fees to a prevailing party in an action against the United States, unless the government shows that its position in the underlying litigation "was substantially justified." 28 U.S.C. § 2412(d)(1)(A). Although the EAJA creates a presumption that fees will be awarded to a prevailing party, Congress did not intend fee shifting to be mandatory. Flores v. Shalala, 49 F.3d 562, 567 (9th Cir. 1995). The decision to deny EAJA attorney's fees is within the discretion of the court. Id .; Lewis v. Barnhart, 281 F.3d 1081, 1083 (9th Cir. 2002). Fee awards under the EAJA are paid to the litigant, and not the litigant's attorney, unless the litigant has assigned his or her rights to counsel to receive the fee award. Astrue v. Ratliff, 560 U.S. 586, 596-98 (2010).

"The government bears the burden of demonstrating substantial justification.'" Thangaraja v. Gonzales, 428 F.3d 870, 874 (9th Cir. 2005) (quoting Gonzales v. Free Speech Coalition, 408 F.3d 613, 618 (9th Cir. 2005)). In this Circuit, "substantial justification is equated with reasonableness.... The government's position is substantially justified if it has a reasonable basis in law and fact.'" Id. (quoting Ramon-Sepulveda v. INS, 863 F.2d 1458, 1459 (9th Cir. 1988)) (alteration in original); see also Al-Harbi v. INS, 284 F.3d 1080, 1084 (9th Cir. 2002) ("Substantial justification' in this context means justification to a degree that could satisfy a reasonable person.'") (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). The reasonableness standard is met if the government's position is "justified in substance or in the main" or "to a degree that could satisfy a reasonable person." Gutierrez v. Barnhart, 274 F.3d 1255, 1258 (9th Cir. 2001) (citation and quotation marks omitted); Lewis, 281 F.3d at 1083. The government must justify both the original agency action and its litigation position. Gutierrez, 274 F.3d at 1259. The government's failure to prevail in its position on the underlying issues is not dispositive of the issue of whether the government's position was "substantially justified." See, e.g., Pierce v. Underwood, 487 U.S. 552, 569 (1988) ("Conceivably, the Government could take a position that is not substantially justified, yet win; even more likely, it could take a position that is substantially justified, yet lose."). A court's finding that an agency decision was unsupported by substantial evidence is, however, "a strong indication" that the position of the United States in the litigation was not substantially justified. Thangaraja, 428 F.3d at 874. "Indeed, it will be only a decidedly unusual case in which there is substantial justification under the EAJA even though the agency's decision was reversed as lacking in reasonable, substantial and probative evidence in the record.'" Id. (quoting Al- Harbi, 284 F.3d at 1085).

Under the EAJA, if the government's position is not substantially justified, the court has discretion to determine whether the requested fees are reasonable. See Comm'r, INS v. Jean, 496 U.S. 154, 160-61 (1990) (the court has similar discretion under the EAJA to determine the reasonableness of fees as it does under the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, as described in Hensley v. Eckerhart, 461 U.S. 424, 436-37 (1983)); U.S. v. Milner, 583 F.3d 1174, 1196 (9th Cir. 2009) (fees requested under the EAJA must be reasonable); Atkins v. Apfel, 154 F.3d 986, 989 (9th Cir. 1998) (discussing the Jean clarification that the Hensley analysis applies to EAJA cases). One factor a court must consider in this analysis is the results obtained. See Atkins, 154 F.3d at 989 (the results obtained factor of the Hensley fee analysis applies to cases under the EAJA).

BACKGROUND

LOWD challenged a decision of the Forest Service to increase the use of herbicides in controlling invasive plant species in the Wallowa-Whitman National Forest. LOWD asserted that the Forest Service, in approving an Invasive Plants Treatment Project for the Wallowa-Whitman National Forest (the "Project"), did not comply with three federal statutes: the National Forest Management Act, 16 U.S.C. § 1600 et seq. ("NFMA"); the National Environmental Policy Act, 42 U.S.C. § 4321 et seq. ("NEPA"); and the Clean Water Act, 33 U.S.C § 1251 et seq. LOWD brought five separate claims challenging the Project. The Court dismissed LOWD's two claims under the NFMA, one claim under the Clean Water Act, and one claim under NEPA. The Court granted summary judgment to LOWD on its "cumulative impacts" claim under NEPA, finding that the Forest Service's Final Environmental Impact Statement ("EIS") for the Project arbitrarily and capriciously did not adequately analyze the cumulative impacts of the proposed action.

After the Court's summary judgment adjudication, the parties engaged in two rounds of briefing on the issue of remedy and vacatur. The Court partially vacated the Project, and remanded the issue to the Forest Service to further analyze the cumulative impacts of the Project.

LOWD is appealing the Court's dismissal of LOWD's unsuccessful NEPA claim and LOWD's claims under the NFMA. The United States originally appealed the Court's granting of summary judgment on LOWD's cumulative impacts claim, but on June 18, 2013, the United States Court of Appeals for the Ninth Circuit dismissed that appeal pursuant to a motion to dismiss filed by the United States. On July 17, 2013, LOWD filed its motion for attorney's fees pursuant to the EAJA.

DISCUSSION

The United States argues that LOWD should not be awarded any fees because the government's position was substantially justified and LOWD is not eligible to receive any fees. The United States further argues that to the extent the Court is inclined to award fees to LOWD, the fees requested are excessive and should be reduced.

A. Substantial Justification

The United States argues that fees under the EAJA should not be awarded to LOWD because the government's position, both with respect to the original agency action and to defending the agency action in this lawsuit, was substantially justified. The United States relies heavily on the fact that it was successful in defending four of LOWD's claims for the proposition that its position on the cumulative impacts claim was substantially justified. The fact that a plaintiff is only partially successful, however, does not mean that the government's position was substantially justified. Partial success is accounted for by assessing a reasonable amount of fees in light of degree of success, not in barring fee awards in their entirety. See, e.g., Hensley, 461 U.S. at 438-39, 446 (holding that courts considering EAJA fee applications must "consider the relationship between the extent of success and the amount of the fee award.... A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole" and that where "a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount"); Greater L.A. Council on Deafness v. Cmty. TV of S. Cal., 813 F.2d 217, 222 (9th Cir. 1987) (holding that when determining fee awards when a plaintiff is only partially successful, a court must either (1) award fees for work done only on the successful claims, if that work is separable; or (2) where work is not separable, reduce the fee award to account for limited success, not by a mathematical ratio of winning claims to losing claims, but by considering the significance of the overall relief granted to all the claims and remedies pursued).

The United States also argues that its position with respect to the cumulative impacts claim was substantially justified because the Forest Service did, in fact, comply with its legal obligations to consider the cumulative impacts of the Project. The United States cites to numerous places in the record as evidencing its proper consideration of the cumulative impacts. The United States also cites to guidance documents as supporting the Forest Service's conclusions regarding the Project and argues that the Forest Service's conclusions were reasonable interpretations based on these documents. These arguments were rejected by the Court in its original determination that the Forest Service did not properly consider the cumulative impacts of the Project. They do not suffice to show that the government's position was substantially justified. See Or. Natural Res. Council v. Madigan, 980 F.2d 1330, 1332 (9th Cir. 1992) (rejecting the government's argument that because the relevant section of NEPA allowed for two equally compelling interpretations the government's position was substantially justified, noting that the fee determination was bound by the original determination on the merits rejecting this same argument and finding that the government's purportedly reasonable interpretation was arbitrary and capricious); Cascadia Wildlands v. Bureau of Land Mgmt., ___ F.Supp.2d ___, 2013 WL 6576125, at *3 (D. Or. Dec. 12, 2013) (finding that opposition to a request for fees under the EAJA that "is premised on the same arguments" and is an "attempt to reargue the merits of the case" is unpersuasive).

In assessing the Project under NEPA, the Forest Service was not faced with a new and untested area of law, as demonstrated by the many cases cited by the Court in its opinion describing how cumulative impacts should be analyzed under NEPA. This case does not fall within the "decidedly unusual" category of cases "in which there is substantial justification under the EAJA even though the agency's decision was reversed as lacking in reasonable, substantial and probative evidence in the record, " warranting the denial of EAJA fees. Thangaraja, 428 F.3d at 874 (quotation marks and citation omitted).

Because the Court has found that the government was not substantially justified in its original agency action, the Court need not determine whether the government was substantially justified in its litigation position. Meier v. Colvin, 727 F.3d 867, 872 (9th Cir. 2013) ("Because the government's underlying position was not substantially justified, we need not address whether the government's litigation position was justified.").[2] The government's argument that attorney's fees should not be awarded because the government's position was substantially justified is rejected.

B. Whether LOWD is Eligible to Receive an Award of Attorney's Fees under the EAJA

The United States argues that LOWD is not eligible to receive an award of attorney's fees under the EAJA because LOWD has not presented any evidence that it "incurred" the attorney's fees requested-no bills received or paid or any assertion that it is obligated to pay any legal fees awarded to counsel. This argument is unavailing. "It is well-settled that an award of attorneys fees [under EAJA] is not necessarily contingent upon an obligation to pay counsel.... The presence of an attorney-client relationship suffices to entitle prevailing litigants to receive fee awards.'" Nadarajah v. Holder, 569 F.3d 906, 916 (9th Cir. 2009) (alterations in original) (quoting Ed A. Wilson, Inc., v. GSA, 126 F.3d 1406, 1409 (11th Cir. 1997)). This is true regardless of whether the attorneys are from a private firm or a non-profit organization. Id. The United States does not dispute that there is an attorney-client relationship between LOWD and its counsel, but instead focuses its argument on the fact that LOWD has not submitted evidence that it must pay its counsel any awarded fees. Whether LOWD must pay any awarded fees to its counsel or whether its counsel agreed to work at no charge, however, is immaterial for purposes of awarding LOWD fees under the EAJA. Id. ("The ACLU's representation of Nadarajah at no charge, pursuant to the retainer agreement, does not preclude awarding reasonable attorneys' fees under EAJA, including the requested prevailing market rates."). Although an assignment of fees from LOWD to its attorneys would be required if the motion for fees requested that the fees be payable directly to the attorney instead of to LOWD, see Ratliff, 560 U.S. at 596-98, no such request is present in this case.

C. The Amount of Fees

The United States argues that LOWD's fee request is excessive because LOWD was only successful on one of its five claims, LOWD's billing is excessive and duplicative, the requested hourly rates are too high, and law student time should not be included. The first three arguments are interrelated arguments regarding the reasonableness of the requested fee in light of LOWD's partial success and are addressed together. The final argument is addressed separately below.

In litigating fee applications, the plaintiff bears the burden of "documenting the appropriate hours expended in the litigation and must submit evidence in support of those hours worked, " and the government, in opposing the fee application, "has a burden of rebuttal that requires submission of evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits." Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992) (citing Blum v. Stenson, 465 U.S. 886, 892 n.5 (1984); Hensley, 461 U.S. at 433, 437; Toussaint v. McCarthy, 826 F.2d 901, 904 (9th Cir. 1987)). Here, LOWD met its burden by submitting time sheet and billing records, declarations by counsel, and declarations by three experts opining that the hours spent and hourly ...


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