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League of Wilderness Defenders v. Turner

United States District Court, D. Oregon, Pendleton Division

March 30, 2018

SLATER R. TURNER, et al., Defendants. Date Name Task Hours Date Name Task Hours Name Hours Name Hourly rate Hours Totals



         This matter comes before me on Plaintiffs League of Wilderness Defenders's Application for Fees Pursuant to EAJA [43] and Amended Bill of Costs [52]. For the reasons stated below, I GRANT in part and DENY in part the Motions.


         In 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 [1]. LOWD moved for a preliminary injunction to enjoin the logging, which I granted after oral argument. Order [25].

         The Forest Service then voluntarily withdrew its decision memo, and I stayed the litigation so that the parties could negotiate attorney fees. Order [30]. Those negotiations were unsuccessful, and LOWD moved to voluntarily dismiss. Motion [34]. I granted the motion and dismissed LOWD's claims without prejudice. Order [39].

         LOWD moved for attorney fees [43] and costs [52]. The Forest Service requested discovery on the motion [54], and I denied the request after briefing. Order [66].

         LOWD seeks a grand total of $213, 373.32. Reply [82] 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. [83].


         I. Entitlement to Attorney Fees

         A party 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 requirements.

         As to (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.

         As to (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. [46] at 2.

         To 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.

         LOWD has therefore met all four requirements, and I find that LOWD is entitled to attorney fees.

         II. Amount of Fees

         If a 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.

         A. Rates

         LOWD 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.

         The 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).

         Nevertheless, 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).

         Where 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 LOWD].

         The OSB 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).

         1. Whether issue preclusion applies

         LOWD argues that prior litigation determines the reasonable rates in this case.

         Issue 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).

         In a 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 case.

         I 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.

         2. Whether Mr. Buss and Mr. Buchele qualify for a higher rate

         LOWD 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.

         a) Distinctive knowledge and skills

         First, 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.

         Mr. Buss is an Oregon attorney who has practiced since 2012, primarily in various areas of state law. Buss Decl. [45] 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 cases. Id.

         The 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.[1] See Wilderness Watch v. Iwamoto, No. C10-1797-JCC (W.D. Wash. Feb. 8, 2013).

         The 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.

         As LOWD 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.

         I 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 does not.

         b) Needed in ...

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