League of Wilderness Defenders/Blue Mountains Biodiversity Project v. Turner
Docket: No. 2:16–CV–01648–MO
Court: District Court, D. Oregon; March 30, 2018; Federal District Court
Plaintiff League of Wilderness Defenders (LOWD) applied for attorney fees under the Equal Access to Justice Act (EAJA) following a legal challenge to the United States Forest Service's approval of the Walton Lake Restoration Project. LOWD successfully obtained a preliminary injunction against the logging project, leading the Forest Service to withdraw its approval. Subsequent negotiations for attorney fees were unsuccessful, prompting LOWD to voluntarily dismiss its claims, which the court granted without prejudice. LOWD then sought a total of $213,373.32 in fees and costs, which included attorney, legal fellow, and law student time, expert fees, and other costs.
The court confirmed that LOWD met all EAJA requirements for an award: it prevailed by winning a significant issue through the preliminary injunction and the withdrawal of the project approval; it is eligible under the criteria of having fewer than 500 employees, being a tax-exempt entity, and having a net worth under $7 million; it provided an itemized statement of fees; and it alleged that the Forest Service's position was not substantially justified. Consequently, the court ruled that LOWD is entitled to attorney fees.
A court determines reasonable attorney fees for a plaintiff entitled to an award through the lodestar calculation, which multiplies the reasonable hourly rate by the number of hours reasonably expended on litigation. The statutory maximum hourly rate under the Equal Access to Justice Act (EAJA) is $125, adjustable for cost of living, with adjusted rates of $192.68 for 2016 and $196.79 for 2017. Higher fees may be justified by "special factors," including an attorney's distinctive knowledge and skills necessary for the case that aren’t available at the statutory rate. Courts in the Ninth Circuit assess the prevailing market rate and consider factors like experience, skill, and reputation when determining reasonable hourly rates, using the Oregon State Bar Economic Survey as a benchmark. The district court may also evaluate the quality of the attorney's performance, case complexity, and special skills. In terms of paralegal rates, courts have awarded between $50 and $125, while law student intern rates vary from $75 to $100. If evidence for law student rates is lacking, courts may rely on their own knowledge of the legal community to set a reasonable rate.
Issue preclusion is analyzed concerning LOWD's argument that prior litigation sets reasonable rates for the current case. For issue preclusion to apply, an issue must have been actually litigated, determined by a valid final judgment, and essential to that judgment, as established in Arizona v. California. The issues must also be identical, per Parklane Hosiery Co. v. Shore. In a 2014 case, Judge Michael Simon of the District of Oregon ruled that rates of $450 for Mr. Buchele and $125 for law students were reasonable. LOWD contends that this ruling should preclude the Forest Service from arguing for lower rates now. However, it is argued that the issue of reasonable rates is too specific to the case at hand to be considered "actually litigated and determined" in the previous case. Factors influencing the determination of an attorney's rate, such as the necessity of their skills for the litigation and the quality of their performance, can vary significantly between cases. Despite this, the similarities between the cases make the 2014 ruling particularly persuasive in the current context.
LOWD contends that Mr. Buss and Mr. Buchele qualify for a higher billing rate than the statutory maximum based on three criteria. Firstly, they argue that both attorneys possess "distinctive knowledge and skills" in environmental law. The Forest Service acknowledges Mr. Buchele's qualifications but disputes Mr. Buss’s credentials. Mr. Buss, an Oregon attorney since 2012, has a background including environmental law coursework and relevant internships, but the Forest Service argues this does not constitute sufficient experience post-bar admission to justify a higher rate. They reference a precedent from the Western District of Washington emphasizing that distinctive skills must be developed after admission to the bar.
Past case law, including McKenzie Flyfishers v. McIntosh and Cascadia Wildlands v. Bureau of Land Management, supports the Forest Service's argument by illustrating that law school experience alone is insufficient to warrant an elevated rate without significant post-law school practice. Although both cases acknowledged specialized training during law school, they did not authorize rates exceeding the statutory cap based solely on that training.
The case at hand notes that Mr. Buss has some post-law school experience, but the criteria for exceeding the cap are intended to apply to "rare" and "exceptional" situations. Mr. Buchele's extensive 30 years of experience qualifies as exceptional, while Mr. Buss’s background does not reach that threshold. Consequently, the conclusion is that Mr. Buchele meets the first requirement for a higher rate, while Mr. Buss does not.
LOWD contends that specialized knowledge was essential for the litigation due to the complex federal environmental law issues involved, a point supported by its experts. The Ninth Circuit acknowledges that environmental law cases can necessitate specific skills. LOWD highlights the importance of Mr. Buchele's expertise, especially given the limited time available between receiving the administrative record and filing for a preliminary injunction. In contrast, the Forest Service argues that the case only required basic administrative law application and that the complexity did not warrant high hourly rates for legal services. It claims that since attorneys Mr. Buss and Mr. Buchele worked collaboratively, they were interchangeable, undermining the necessity of individual skills. However, the court finds that Mr. Buchele's specialized knowledge was indeed crucial due to the case's intricate legal arguments and rapid progression. Furthermore, the court asserts that senior and junior attorneys can collaborate without being considered interchangeable.
LOWD asserts that Mr. Buchele's legal expertise was not available at the EAJA statutory rate, even when adjusted for inflation. LOWD's Director, Karen Coulter, described her extensive efforts to find qualified attorneys, stating that she has consistently encountered difficulties in retaining lawyers willing to work for the EAJA rate. She noted that in 2016, LOWD had cases that could not be pursued due to a lack of available counsel. Expert declarations from Mr. Buss and Mr. Buchele supported this claim, stating their specialized knowledge was not accessible at the statutory rate.
The Forest Service countered by arguing that Coulter did not provide sufficient details about her attorney search, limited her search to $125/hour instead of considering cost-of-living adjustments, and pointed out that Mr. Buss successfully worked on the case alone for three months, suggesting that LOWD did not require Mr. Buchele's particular expertise. They also claimed that environmental litigation has become more prevalent, leading to a greater number of recent law graduates who could represent LOWD at the statutory rate.
In response, LOWD highlighted its experts' declarations asserting the unavailability of qualified counsel at the statutory rate in Oregon and referenced a previous ruling by Judge Simon that supported its position. Ultimately, it was concluded that LOWD successfully demonstrated that attorneys with Mr. Buchele's qualifications were not available at the statutory rate. David Becker, an experienced attorney, confirmed this unavailability. The ruling determined that Mr. Buchele qualifies for a higher rate due to his unique qualifications, while Mr. Buss, not meeting the criteria for a higher rate, is awarded the statutory maximum of $192.68 for 2016 and $196.79 for 2017. The Forest Service did not contest the appropriateness of this maximum rate for Mr. Buss.
Mr. Buchele has requested an hourly rate of $475 for his legal services, which exceeds the average reported in the Oregon State Bar (OSB) Survey. The prevailing party must justify any rate above the average, and courts typically cap such rates at the 75th percentile of the OSB Survey. The Forest Service contests this rate, arguing that the appropriate community for comparison is Eastern Oregon, where attorneys with 30 years of experience charge $275 per hour at the 75th percentile. They contend that LOWD cannot claim Portland as the correct forum since it did not raise the issue in its motion. However, LOWD's expert declarations support Portland as the appropriate forum, citing a lack of qualified attorneys in Eastern Oregon.
The court agrees with LOWD, affirming Portland as the correct forum based on the location of the case and the availability of attorneys. The Forest Service also argues that Mr. Buchele’s rate is excessive given his position at a law school clinic, which reportedly incurs lower overhead costs. LOWD counters that both the U.S. Supreme Court and the Ninth Circuit have upheld market rates for non-profit attorneys, and lower courts have dismissed distinctions for legal clinics. LOWD references a prior case where $450 per hour was deemed appropriate for Mr. Buchele.
The court finds that the market-rate approach, as mandated by Hensley, does not account for specific overhead costs, as these are generally assumed to be similar across attorneys. The court concludes that Mr. Buchele’s rate of $475/hour is reasonable, supported by the 2017 OSB Survey, which indicates that Portland attorneys with 21-30 years of experience charge $475 at the 75th percentile. Mr. Buchele's thirty years of experience and specialized expertise further justify his rate.
LOWD requests hourly rates of $140 for legal fellows Doug DeRoy and Kathryn Roberts, and $130 for law students Tessa Chillemi, Kadin Pasley, and Skylar Sumner. The Forest Service argues for a reasonable rate of $50/hour, asserting that LOWD should provide evidence of paying clients who have paid the requested rates, as unsupported hours cannot be billed to adversaries. LOWD did not provide such evidence but argues that expert declarations support the reasonableness of its rates. LOWD cites a prior case where a law student was awarded $125/hour. In response to the Forest Service’s claim about the lack of qualifications documentation for students and fellows, LOWD attached resumes and stated that such documentation was not required. The court finds that LOWD demonstrated the reasonableness of its requested fees through expert opinions and clarifies that the Hensley case does not necessitate proof of actual payment by clients. Additionally, law clerk time is deemed compensable under federal fee-shifting statutes.
Regarding hours billed, the lodestar method applies, which requires multiplying reasonable rates by reasonable hours. Courts may exclude excessive, redundant, or unnecessary hours. LOWD submitted records for 573.9 hours in primary litigation and 194.2 hours for attorney fees litigation, totaling 761.9 hours after accounting for withdrawals. The Forest Service contests 160 of these hours, citing 35.8 as noncompensable, 41.4 as excessive or redundant, and 87.6 as instructional. It also suggests a 15% reduction for time spent on unsuccessful claims and excessive hours on the Complaint.
The Forest Service raised objections regarding 21.4 hours billed as administrative or clerical tasks, asserting that such tasks should not be charged as attorney fees, as they are considered overhead expenses. Clerical tasks include filing motions, preparing documents, organizing files, and related activities, as supported by case law. LOWD countered that some of the contested hours were spent on cite-checking, which is not classified as clerical work. The ruling allows LOWD to recover fees for cite-checking but denies fees for clerical tasks related to creating and reviewing tables of contents and formatting briefs. Specific denied administrative entries include tasks performed by various individuals on specified dates, totaling several hours.
Additionally, the Forest Service contested 14.4 hours spent on motions that were never filed, including drafting motions for the Administrative Record, investigating claims, and preparing a FOIA request. LOWD argued that these efforts were preparatory and therefore compensable, referencing case law to support its position. The ruling recognizes that LOWD may recover fees for reasonable hours spent on investigating potential claims and preparing for future motions, emphasizing the importance of these tasks in litigation.
The Forest Service contests 29.6 hours billed for "conference" time, asserting that only one attorney should charge for such meetings. It cites good billing judgment principles, suggesting duplicative billing is inappropriate. LOWD counters, referencing Ninth Circuit rulings that do not categorize multiple attorney participation as inherently duplicative. LOWD emphasizes that the Forest Service did not demonstrate how the conferences were duplicative and notes a judge's prior endorsement of multiple attorneys collaborating in complex cases. While it is generally acceptable for two attorneys to bill for joint work, the document states that billing becomes duplicative with more than two participants. Consequently, fees were denied for several specific entries involving multiple attorneys in meetings.
Additionally, the Forest Service objects to 6.7 hours billed by Mr. Buss for a site visit to Walton Lake, arguing the visit was unnecessary for their administrative-law challenge. LOWD defends the visit as beneficial for understanding the site and its alternatives, citing Mr. Buchele's separate visit as evidence of its relevance. The document concludes that time spent on claim investigation, including site visits, is reasonable and fees for the visit are awarded.
Finally, the Forest Service raises concerns about certain entries deemed duplicative. However, after review, it is determined that these entries are not duplicative; multiple attorneys performing tasks like reviewing and editing documents or continuing research over multiple days is deemed reasonable.
The Forest Service objects to hours billed for instruction-related activities involving law students and new attorneys, citing precedents that discourage passing the financial burden of training onto the government. It specifically challenges time spent by Mr. Buchele on meetings and mentoring students, totaling 27.9 hours. LOWD argues it has already removed hours focused primarily on education and that the clinic operates similarly to a nonprofit legal service, with reduced billing rates for students and fellows. The court finds the hours worked by students and fellows to be reasonably billed, consistent with recoverable law clerk tasks.
Additionally, the Forest Service requests a 15% reduction in fees for time spent on NFMA arguments, asserting that hours related to unsuccessful claims should not be compensated. LOWD contends its NFMA claim is not unrelated as it stems from the same factual basis as successful claims and achieved the relief sought. The court agrees with LOWD, asserting that all claims were resolved favorably for LOWD and that the assessment of claims should not diminish their entitlement to fees based on preliminary injunction evaluations.
The Forest Service argues for a 15% reduction in LOWD's attorney fees, claiming LOWD spent excessive time—153.6 hours—on pre-complaint activities without sufficiently explaining why the time was excessive. LOWD counters that the time spent involved critical litigation tasks and that its expert deems the hours reasonable. The decision concludes that the pre-Complaint hours were justified and not excessive.
Regarding the hours spent on the attorney fee petition, LOWD seeks compensation for the time spent on this petition, which is permitted for the prevailing party. The Forest Service contests this, suggesting reductions based on unsuccessful arguments and categorizing some hours as administrative or duplicative. However, LOWD is found to have largely prevailed in its request, and since unsuccessful arguments are intertwined with successful ones, no reductions are made.
LOWD also seeks expert fees totaling $13,819.25 for its attorney fee experts. The Forest Service argues that LOWD cannot recover these fees, citing the EAJA's limit on expert compensation to the highest rate paid by the United States, which they assert is $0 due to their own expert being provided for free. LOWD argues that since the United States did not pay for any expert, the provision should not apply, referencing case law supporting its position.
No record exists of compensation paid to any expert witness by the United States in this case. LOWD contends that awarding zero expert fees contradicts the purpose of the Equal Access to Justice Act (EAJA), intended to reduce the deterrent effect of seeking judicial review by allowing for attorney fees in certain situations. The provision in question appears inconsistent with the EAJA's broader goals; it could allow a plaintiff to hire qualified experts but receive no compensation if the United States only employed an inexperienced expert at a nominal rate. Courts have interpreted this provision to impose no minimum quality on the United States's lower-cost experts, as illustrated in ACE Const. Inc. v. United States. The prevailing interpretation suggests that recovery is limited to what the United States has paid, yet this has not been universally accepted by the courts, and LOWD does not argue this point.
Ultimately, the statute's plain terms must be applied, and the argument that the provision does not apply because the United States paid nothing is unpersuasive. A situation where the United States pays $0.01/hour but not $0/hour would be unreasonable. Although the provision may conflict with the EAJA's broader intentions, awarding expert fees would contradict the specific intent to restrict recoverable rates to those paid by the United States.
The EAJA authorizes the award of "costs" as defined in 28 U.S.C. 1920 and "other expenses" typically billed to clients. LOWD requested $566.07 in costs, which includes clerk fees and transcript fees. The Forest Service initially objected, arguing that LOWD had not yet been determined the prevailing party, but this determination has now been made. Costs of $566.07 are awarded.
In conclusion, LOWD's Motion for Attorney Fees is partially granted, and its Amended Bill of Costs is granted in full. A total of $182,658.66 in attorney fees is awarded along with $566.07 in costs. Additionally, there is a discussion about the distinctive knowledge and skills required for attorney fees, indicating that some positions conflict with Ninth Circuit precedent. It is noted that a lack of compensation for experts could deter advocacy groups from retaining necessary expert testimony in environmental litigation, potentially giving the government an unfair advantage. Future litigation may address these issues, but for now, the focus remains on applying the existing, albeit problematic, statutory provisions.
