United States District Court, D. Oregon, Pendleton Division
LEAGUE OF WILDERNESS DEFENDERS/BLUE MOUNTAINS BIODIVERSITY PROJECT, Plaintiff,
SLATER R. TURNER, et al., Defendants. Date Name Task Hours Date Name Task Hours Name Hours Name Hourly rate Hours Totals
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES DISTRICT JUDGE
matter comes before me on Plaintiffs League of Wilderness
Defenders's Application for Fees Pursuant to EAJA 
and Amended Bill of Costs . For the reasons stated below,
I GRANT in part and DENY in part the Motions.
December 2015, Defendant United States Forest Service issued
a decision memo that approved the Walton Lake Restoration
Project, a proposed commercial logging and thinning project
at Walton Lake. Plaintiff League of Wilderness Defenders/Blue
Mountains Biodiversity Project (LOWD) challenged the Forest
Service's approval of the project under the National
Environmental Protection Act and the National Forest
Management Act. Complaint . LOWD moved for a preliminary
injunction to enjoin the logging, which I granted after oral
argument. Order .
Forest Service then voluntarily withdrew its decision memo,
and I stayed the litigation so that the parties could
negotiate attorney fees. Order . Those negotiations were
unsuccessful, and LOWD moved to voluntarily dismiss. Motion
. I granted the motion and dismissed LOWD's claims
without prejudice. Order .
moved for attorney fees  and costs . The Forest
Service requested discovery on the motion , and I denied
the request after briefing. Order .
seeks a grand total of $213, 373.32. Reply  at 29. That
amount is comprised of: $198, 988.00 in attorney, legal
fellow, and law student time, of which $59, 812.50 was
incurred in the attorney fee litigation itself; $13, 819.25
in expert fees; and $566.07 in costs. Id. LOWD
retained attorneys Tom Buchele and Jesse Buss, as well as
legal fellows and law students at Earthrise Law Center, the
environmental law clinic at Lewis & Clark Law School and
several experts. See Buchele Decl. .
Entitlement to Attorney Fees
who prevails against the United States in a civil action is
entitled, in certain circumstances, to an award of attorney
fees and costs under the Equal Access to Justice Act. 28
U.S.C. § 2412. To be entitled to an award, a party must
(1) prevail, (2) be eligible for an award, (3) submit a
statement of amounts sought as well as an itemized account of
time expended and rates charged, and (4) allege that the
United States's position was not substantially justified.
Scarborough v. Principi, 541 U.S. 401, 408 (2004).
The Forest Service does not contest that LOWD meets these
(1), a party prevails if it “succeed[s] on any
significant issue in litigation which achieves some of the
benefit the part[y] sought in bringing suit.”
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). LOWD
prevailed because it won a preliminary injunction and,
because the Forest Service withdrew its approval, it achieved
the benefit it sought.
(2), a party is eligible for an award if it has fewer than
500 employees, is tax exempt under 501(c)(3) of the Internal
Revenue Code, and has a net worth of less than $7, 000, 000.
28 U.S.C. § 2412(d)(2)(B). LOWD is such a party. Coulter
Decl.  at 2.
satisfy (3), LOWD submitted a statement of the amounts it
sought with the itemized account of time expended and rates
charged. As to (4), LOWD alleges that the Forest
Service's position was not substantially justified.
has therefore met all four requirements, and I find that LOWD
is entitled to attorney fees.
Amount of Fees
plaintiff is entitled to an award, a court determines
reasonable attorney fees by the lodestar calculation.
Hensley, 461 U.S. at 433; see Comm'r, INS v.
Jean, 496 U.S. 154, 160-61 (1990) (holding that the
Hensley analysis applies to EAJA awards). The
lodestar calculation multiples the reasonable hourly rate by
the number of hours reasonably expended on the litigation.
Hensley, 461 U.S. at 433.
seeks attorney fees at these rates: Mr. Buchele at $475/hour;
Mr. Buss at $250/hour; the legal fellows at $140/hour, and
the law students at $130/hour.
EAJA sets a statutory maximum hourly rate of $125/hour, which
the court may adjust for cost of living increases. 28 U.S.C.
§ 2412(d)(2)(A). For 2016, the adjusted statutory rate
is $192.68; for 2017, $196.79. See Statutory Maximum
Rates Under the Equal Access to Justice Act,
(citing 28 U.S.C. § 2412(d)(2)(A); Thangaraja v.
Gonzales, 428 F.3d 870, 876-77 (9th Cir. 2005); and 9th
Cir. R. 39-1.6).
a “special factor” may justify a higher fee. 28
U.S.C. § 2412(d)(2)(A)(ii). In the Ninth Circuit, a
court may award a higher rate if (1) the attorney possesses
“distinctive knowledge and skills developed through a
practice specialty, ” and those skills are (2) needed
in the litigation and (3) not available elsewhere at the
statutory rate. Love v. Reilly, 924 F.2d 1492, 1496
(9th Cir. 1997). It is the plaintiff's burden to satisfy
these elements. Nat. Res. Def. Council, Inc. v.
Winter, 543 F.3d 1152, 1158-62 (9th Cir. 2008).
higher rates are justified, a court looks to prevailing
market rate to set reasonable hourly rates. See Gonzalez
v. City of Maywood, 729 F.3d 1196, 1205 (9th Cir. 2013).
“Generally, when determining a reasonable hourly rate,
the relevant community is the forum in which the district
court sits.” Id. (quoting Prison Legal
News v. Schwarzenegger, 608 F.3d 446, 454 (9th Cir.
2010)). Within this geographic community, the district court
should consider the experience, skill, and reputation of the
attorneys or paralegals involved. Id. Courts in this
District rely on the most recent Oregon State Bar (OSB)
Economic Survey as the “initial benchmark.”
See U.S. Dist. Ct., Dist. of Or., Message from the
Court Regarding Fee Petitions,
Courts may also consider factors such as the quality of
attorney's performance, the results obtained, the
complexity of a case, and the special skill and experience of
counsel. League of Wilderness Defenders v. U.S. Forest
Serv., No. 3:10-cv-01397-SI, 2014 WL 3546858, at *6 (D.
Or. July 15, 2014) (citing Perdue v. Kenny A. ex rel.
Winn, 559 U.S. 542, 551-52 (2010)) [hereinafter
Economic Survey does not include data on law student rates.
In the absence of relevant evidence, the court may determine
a reasonable rate based on its knowledge of the legal
community. Asia Pac. Agric. & Forestry Co. v. Sester
Farms, Inc., No. 3:12-CV-936-PK, 2012 WL 6157263, at *8
(D. Or. Nov. 22, 2013). Rates for paralegals are an
appropriate comparator; courts have awarded between $125 and
$50 for paralegal work. Nadarajah v. Holder, 569
F.3d 906, 918 (9th Cir. 2009) ($100 for paralegals, $75 for
law student interns); Prison Legal News v. Umatilla
Cty., No. 2:12-cv-01101-SU, 2013 WL 2156471, at *7 (D.
Or. May 16, 2013) ($90-125 for paralegals); Precision
Seed Cleaners v. Country Mut. Ins. Co., 976 F.Supp.2d
1228, 1247- 49 (D. Or. 2013) (citing cases that awarded $50
for paralegals who provided no evidence of their experience
and up to $125 for those who did).
Whether issue preclusion applies
argues that prior litigation determines the reasonable rates
in this case.
preclusion applies where an issue of fact or law is actually
litigated and determined by a valid and final judgment, and
the determination is essential to the judgment. Arizona
v. California, 530 U.S. 392, 414 (2000). The issues must
be identical. Parklane Hosiery Co. v. Shore, 439
U.S. 322, 326 n.5 (1979).
similar case in 2014, District of Oregon Judge Michael Simon
held that rates of $450 for Mr. Buchele and $125 for law
students were reasonable. See LOWD, 2014 WL 3546858,
at *13-15. LOWD argues that issue preclusion applies to that
holding, and that therefore the Forest Service cannot now
argue for rates lower than the rates awarded in the 2014
disagree. The issue of reasonable rates is too case-specific
to have been “actually litigated and determined,
” even in a very similar case. For example, to
determine whether an attorney qualifies for a higher rate, I
must consider whether his skills were “needed in the
litigation, ” Love, 924 F.2d at 1492--not some
other litigation; this litigation. Likewise, the
reasonableness factors that I may consider, such as the
quality of the attorney's performance and the results
obtained, necessarily differ from case to case. See
Perdue, 559 U.S. at 551-52. Still, LOWD's
similarity does make it especially persuasive here.
Whether Mr. Buss and Mr. Buchele qualify for a higher
argues that Mr. Buss and Mr. Buchele meet the three
requirements that justify rates higher than the statutory
maximum. See Love, 924 F.2d at 1496.
Distinctive knowledge and skills
LOWD argues that Mr. Buss and Mr. Buchele have
“distinctive knowledge and skills” developed
through their experience in environmental law. The Forest
Service does not dispute that Mr. Buchele has distinctive
knowledge and skills, but argues that Mr. Buss does not.
Buss is an Oregon attorney who has practiced since 2012,
primarily in various areas of state law. Buss Decl.  at
2-4. At Lewis & Clark Law School, he took many
environmental law classes; earned a Certificate in
Environmental and Natural Resources Law from its
highly-ranked environmental law program; worked at Earthrise
(then known by a different name); and interned the Northwest
Environmental Defense Center. Id. His current
practice includes “several” environmental law
Forest Service argues that Mr. Buss's law school
experience alone cannot meet the requirement for distinctive
knowledge and skills. In line with a recent opinion from the
Western District of Washington, the Forest Service argues
that “distinctive knowledge and skills developed
through a practice specialty” must be developed
post-bar admission. See Wilderness Watch v. Iwamoto,
No. C10-1797-JCC (W.D. Wash. Feb. 8, 2013).
parties dispute whether two cases in this district support
the Forest Service's contention. In McKenzie
Flyfishers v. McIntosh, 158 F.Supp.3d 1085, 1094-95 (D.
Or. 2016), the court reduced the requested rate for an
attorney who had “gained a significant amount of
clinical and legal research experience and began to develop a
specialized knowledge base in environmental law while in law
school, ” but who had practiced for less than a year.
“Because [the attorney] had less than one year of
professional experience, ” the court reasoned,
“this court cannot conclude that [he] developed a
specialized skillset and reputation in such a short time to
justify” a higher rate. Id. at 1094.
Previously, in Cascadia Wildlands v. Bureau of Land
Management, 987 F.Supp.2d 1085, 1097-98 (D. Or. 2013),
the court had reached the same conclusion on similar facts.
points out, both judges increased the rate they would have
otherwise awarded due to the specialized environmental
training those attorneys received during law school. See
McKenzie, 158 F.Supp.3d at 1094; Cascadia, 987
F.Supp.2d at 1098. Still, as the Forest Service argues,
neither court found that that law school training could
justify an award above the statutory maximum.
agree. This case differs slightly because Mr. Buss does have
some post-law school experience in several environmental law
cases. Still, rates above the cap are supposed to be
“rare” and “exceptional, ”
Perdue, 559 U.S. at 552-54. An attorney with Mr.
Buchele's 30 years of experience in this field is rare
and exceptional; an attorney with Mr. Buss's
environmental law background, much less so. Therefore, I find
that Mr. Buchele meets the first element, but that Mr. Buss
Needed in ...