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UNITED STATES v. CITY OF SAN DIEGO

September 17, 1998

UNITED STATES OF AMERICA, Plaintiff,
v.
CITY OF SAN DIEGO, STATE OF CALIFORNIA, et al., Defendants. SIERRA CLUB, EMILY DURBIN and BRUCE HENDERSON, Intervenors



The opinion of the court was delivered by: BREWSTER

ORDER (1) DENYING CITY OF SAN DIEGO'S MOTION FOR RECONSIDERATION, (2) DENYING SIERRA CLUB'S MOTION FOR RECONSIDERATION, AND (3) CLARIFYING THE COURT'S JUNE 30, 1998 ORDER.

 I. INTRODUCTION

 On July 28, 1998, Defendant City of San Diego ("City") filed a motion for reconsideration and/or clarification of the Court's June 30, 1998 order ("the Order") granting Plaintiff-intervenor Sierra Club's motion for attorney's fees under 33 U.S.C. § 1365(d). Sierra Club filed its own motion for reconsideration of the Order on July 30, 1998. Upon due consideration of the moving and responding papers and for the reasons set forth below, the Court hereby DENIES the City's motion for reconsideration and DENIES the Sierra Club's motion for reconsideration. However, the Court will clarify the Order.

 II. BACKGROUND

 The complete background of this case is set forth in the Order and need not be rehashed here. On June 20, 1997, Plaintiff-intervenor Sierra Club filed a motion for attorney's fees pursuant to 33 U.S.C. § 1365(d). After full briefing, the Court held a hearing on April 24, 1998. At the hearing, the Court announced that it would grant Sierra Club's motion, but that it would adjust the fee requested to reflect a reasonable fee in light of the unique and complex resolution reached in this case.

 Sierra Club requested a total fee of $ 866,628.83, which represented all of its work on the case, minus the interim fee award that it received in 1992. Additionally, Sierra Club sought a 25% enhancement to reflect the quality of the results that it obtained in the case, plus a "delay enhancement" to reflect the interest attributable to the elapsed time between the accrual and award of its fees.

 Unfortunately, some of the issues that the Court considered essential to its ruling were not discussed, i.e., precisely why the Court was using an issue-by-issue method for adjusting Sierra Club's fee and which specific work was to be emphasized in calculating the total. The Court stated at the hearing that it would decrease the $ 866,628.83 requested by the Sierra Club by the amounts attributable to work on the following issues: (1) Sierra Club's application for a temporary restraining order to enjoin the Mexican-American outfall pipe, *fn1" (2) appellate work, and (3) non-water conservation work during the penalty phase of the case. The parties were ordered to meet and confer to review Sierra Club's billing records and submit a final amount to the Court. The Sierra Club subsequently informed the Court that the parties had agreed to a total of $ 781,306. Although the City sent the Court a letter stating that it did not consent to that number, it did not file a formal objection.

 At the hearing, the Court initially stated that it wanted to make the parties jointly and severally liable for the judgment in the following proportions: City--75%, State/United States--25%. Later in the hearing, counsel asked the Court how whether its allocation of liability was affected by the City's agreement to indemnify the State for any fees awarded against it. The Court answered that it intended to ensure that the City was ultimately responsible for 75% of Sierra Club's fees and that the United States was ultimately responsible for 25% of the fees. Therefore, the Court stated that liability would be allocated severally, 62.5% to the City, 12.5% to the State, and 25% to the United States.

 On June 30, 1998, the Court issued its Order granting Sierra Club's motion for attorney's fees in the amount of $ 781,306. However, the Order stated that Sierra Club's requested fee was being decreased to reflect work on the following issues: (1) water reclamation and reuse, (2) disinfection/Ocean Plan, (3) motion to amend the Court's August 1994 interim order, (4) Regional Water Quality Control Board administrative proceedings, (5) appellate work, and (6) a state law "water brief" drafted to oppose the original Consent Decree. The award was also to include an amount equal to 15% of Sierra Club's reasonable attorney's fees for work on the 1992 interim fee petition and all of its fees for work on the final fee petition.

 The City moves to reconsider (1) the amount of the award in light of the additional issues targeted for deduction in the Order and (2) the allocation of liability in the Order. The Sierra Club moves to reconsider the Court's implied ruling that it would not receive an enhancement for delay.

 III. DISCUSSION

 A. Standard of law

 Rule 60(b) of the Federal Rules of Civil Procedure permits relief from a judgment or order for:

 
(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.

 The Ninth Circuit has instructed that "in determining whether Rule 60(b) applies, courts should be mindful that the rules are to be construed to achieve the just determination of every action." Rodgers v. Watt, 722 F.2d 456, 459 (9th Cir. 1983). However, there is also a compelling interest in the finality of judgments that should not be disregarded lightly. Id. Reconsideration under Rule 60(b) is appropriate if "the district court (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law." School Dist. No. 1J, Multnomah County v. ACANDS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993), cert. denied, 512 U.S. 1236, 114 S. Ct. 2742, 129 L. Ed. 2d 861 (1994). Here, ...


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