gave the state court time to
review two of PALCO's THPs at issue in this case. While PALCO argues that
plaintiffs' efforts merely duplicated those of the government agencies,
Defs.' Renewed Opp'n at 17 n. 7, this court does not find them to be
duplicative. If plaintiffs had not acted, PALCO could have logged and
removed already felled logs.
Whether or not plaintiffs actually prevailed on every issue, it is
clear that they essentially achieved the results they sought. See Compl.
¶ 2 & Prayer for Relief ¶ 2. In doing so, they advanced the
interpretation and implementation of the ESA. Accordingly, plaintiffs
satisfy the test for attorneys' fees under the Act. See Ruckelshaus v.
Sierra Club, 463 U.S. 680, 694, 103 S.Ct. 3274, 3282 (1982);
Carson-Truckee Water Conservancy Dist. v. Secretary of the Interior,
748 F.2d 523, 525 (9th Cir. 1984).
C. Applicability of Buckhannon to the ESA
Defendants contend that the recent Supreme Court decision, Buckhannon
Board and Care Home, Inc. v. West Virginia Department of Health and Human
Resources, 532 U.S. 598, 121 S.Ct. 1835 (2001), precludes plaintiffs from
recovering attorneys' fees. Defendants are mistaken. First, Buckhannon
does not apply to the ESA. Second, even assuming Buckhannon applies
generally to suits brought under the ESA, it does not apply to this
action. Thus, plaintiffs' eligibility for attorneys' fees is unaffected
by the Court's decision.
The Buckhannon Court disallowed attorneys' fees under the Fair Housing
Amendments Act (FHAA) and Americans with Disabilities Act (ADA) absent a
material alteration of the legal relationship of the parties. The Court
determined that the requisite change may not occur voluntarily (i.e., via
the catalyst theory), but must result from a court order. Id. at
Admittedly, Buckhannon is not limited to the FHAA and ADA, but extends
to civil rights statutes providing attorneys' fees to prevailing
parties. See id. at 600, 1838 (referring to "[n]umerous federal statutes"
with similar provisions). The Ninth Circuit likewise extended Buckhannon
to the Equal Access to Justice Act ("EAJA"). See Perez-Arellano v.
Smith, 279 F.3d 791, 794 (9th Cir. 2002)) ("[Buckhannon] sweeps more
broadly and its reasoning is persuasively applicable to an award of
attorney's fees under the EAJA.").
While Buckhannon's applicability is broad, it is not universal. Both
the EAJA and the civil rights statutes identified in Buckhannon provide
for attorneys' fees to prevailing parties. See, e.g., EAJA,
28 U.S.C. § 2412(d)(1)(A) ("[A] court shall award to a prevailing
party . . . fees"); FHAA, 42 U.S.C. § 3613(c)(2) ("The court . . . may
allow the prevailing party . . . a reasonable attorney's fee and
costs"); ADA, 42 U.S.C. § 12205 (same); see also Perez-Arellano, 279
F.3d at 794 (highlighting the use of "nearly identical fee-shifting
provisions" and noting that the "[FHAA, ADA, and EAJA] use the identical
term, `prevailing party.'"). In contrast, the ESA does not limit fees to
prevailing parties, but gives courts broad discretion to award attorneys'
fees "whenever the court determines such award is appropriate."
16 U.S.C. § 1540(g)(4). This is a "less stringent standard" for
attorneys' fees and reflects Congress' intent "to expand the class of
parties eligible for fee awards from prevailing parties to partially
prevailing parties." Ruckelshaus, 463 U.S. at 688. For this reason,
several courts have declined to extend Buckhannon to the ESA. See Center
for Biol. Diversity v. Norton, 262 F.3d 1077, 1080 n. 2 (10th Cir. 2001)
(emphasizing the absence
of an express requirement "that the party
seeking attorney's fees be the `prevailing party'" and finding that "the
basis of the Court's conclusion in Buckhannon is not applicable [to the
ESA]"); Southwest Center for Biol. Diversity v. Carroll,
182 F. Supp.2d 944, 947 (C.D.Cal. 2001) ("Because the `whenever . . .
appropriate' language of the ESA is distinguishable on its face from the
`prevailing party' language of the civil rights statutes, this Court is
reluctant to extend the Buckhannon holding to the fee provisions of the
ESA.").*fn8 This court likewise distinguishes prevailing party statutes
and limits Buckhannon's applicability.
Assuming arguendo that Buckhannon extends to the ESA, it does not
affect plaintiffs' fee eligibility. Buckhannon merely precludes a fee
award absent a "court-ordered `chang[e] [in] the legal relationship
between [the parties].'" Buckhannon, 532 U.S. at 604, 121 S.Ct. at 1840
(internal quotation omitted). While the Court highlights final judgments
and court-ordered consent decrees as sufficient changes, these examples
are illustrative not exhaustive. The Court merely demands a judicially
sanctioned change rather than a voluntary agreement. Id. at 598-99, 1837
(requiring a "judicially sanctioned change in the legal relationship of
the parties" and a "judicial imprimatur"), 604 n. 7, 1840 n. 7
(emphasizing the "judicial approval and oversight involved in consent
decrees"). Thus, any court-ordered resolution will suffice.
Defendants did not stop logging voluntarily, but as a result of the
court-issued TRO and September 3 preliminary injunction. See Grano v.
Barry, 783 F.2d 1104, 1110-1111 ("[A] defendant acting in accordance with
a court order cannot be presumed to be acting gratuitously."). Even
absent a final written order, defendants could have been held in contempt
had they continued logging in contravention of the court order. Thus,
plaintiffs' efforts resulted in a court-ordered change in the relationship
between the parties, supporting compensation under Buckhannon. This
conclusion is consistent with the Ninth Circuit's most recent
pronouncement on Buckhannon where it held that a preliminary injunction
carries "all the `judicial imprimatur' necessary to satisfy Buckhannon".
Watson v. County of Riverside, 300 F.3d 1092, 1096 (9th Cir. 2002).
II. Calculation of the Fee Award
A. Reasonable Hours
After a thorough review of the declarations and exhibits submitted by
plaintiffs, the court finds that the number of hours expended on the
merits of this case and the fee applications are reasonable. Plaintiffs'
attorneys spent an enormous amount of time on this action; however, these
hours were necessitated by the complexities of the factual situation and
the questions of law presented. Moreover, because the September 3
injunction was conditional, see Rep. Tr. (Sept. 3, 1998) at 68:24-69:5,
76:19-22 (converting the terms of the TRO into a preliminary injunction
that "will remain in effect until [the court has] had a chance to revisit
this testimony"), plaintiffs' efforts since September 3 are compensable.
Absent this commitment, the court could have adopted defendants'
construction of the ESA and terminated the injunction.
A district court must base a finding of reasonable hours on evidence
and sound documentation. "The fee
applicant bears the burden of
documenting the appropriate hours expended in the litigation and must
submit evidence in support of those hours worked." Gates v. Deukmejian,
987 F.2d 1392, 1397 (9th Cir. 1992) (citing Hensley v. Eckerhart,
461 U.S. 424, 437 (1983)). The court may adjust these hours downward if
it believes the documentation to be inadequate, if the hours were
duplicative, or if the hours were either excessive or unnecessary.
Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210 (9th Cir. 1986),
amended by 808 F.2d 1373 (1987).
The declarations submitted by plaintiffs' counsel chronicle the
extensive research and briefing that led to the successful resolution of
this case. The declarations demonstrate that the long hours spent on
research, court filings and witness preparation were necessary to achieve
the swift relief necessitated by PALCO's intent to log or remove downed
logs. Plaintiffs' declarations and exhibits support their claim that the
hours spent on the case were reasonable in light of the complexities
Once the fee applicant has provided evidence supporting the hours
worked, "[t]he party 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, 987 F.2d at 1397-98 (citing Blum v. Stenson, 465 U.S. 886, 892 n.
5 (1984)). The court received no declarations or other evidence
demonstrating that plaintiffs' attorneys worked an unreasonable number of
hours or misrepresented the complexities of the case. To the contrary,
defendants have stated that they do not "question the reasonableness of
the time [plaintiffs] billed." Defs.' Renewed Opp'n at 1:16-17.
PALCO contends that if this court intends to award attorneys' fees,
plaintiffs' attorneys should not be awarded the full fee request. PALCO
argues that work done by plaintiffs' counsel after the September 3, 1998
injunction should not be compensated because the substantive rights of
the parties were not affected by work undertaken after that date. In the
alternative, PALCO suggests plaintiffs should not be compensated for work
done after November 20, 1998 when formal consultation commenced.
However, given the fact that the relief obtained by plaintiffs
furthered the implementation and interpretation of the ESA, this court
finds it inappropriate to create cut-off dates after which plaintiffs
should not be compensated. The action taken as a whole furthered the
goals of the ESA and therefore plaintiffs are entitled to attorneys' fees
for the entire action. Moreover, PALCO challenged plaintiffs'
construction of the ESA long after either the September 3 injunction or
the initiation of formal consultation. See, e.g., Defs.' Opp'n to Mot.
for Partial Summ. J. (Feb. 12, 1999) at 18:8-10 ("[T]he Court should rule
that, as a matter of law, section 7(a)(2) and 7(d) do not apply to a
section 10 permit application."). Plaintiffs understandably felt
compelled to respond to these arguments and should be compensated for
their efforts, notwithstanding the ultimate mooting of the subsequent
Although PALCO offers no probative evidence that the efforts of
plaintiffs' counsel were duplicative or frivolous, plaintiffs did delete
at least 25.95 hours of work expended on the merits of the case from the
lodestar calculation, resulting in a reduction of $7,370 from the total
lodestar.*fn9 Plaintiffs also deleted all hours associated
response to the Order to Show Cause. This reduction eliminated an
additional 23.55 hours, resulting in a reduction of $5871.75 from the
total lodestar. Gaffney Dec. (Dec. 19, 2001) ¶¶ 3-10. Plaintiffs have
further demonstrated billing judgment in the hours claimed preparing both
the original and renewed motion for attorneys' fees. Pearl Supp. Dec.
¶ 2 (Feb. 25, 2002) (eliminating billable hours for Duggan and
Cummings' efforts on the Reply); Pearl Supp. Dec. ¶ 2 (Aug. 9, 1999)
(eliminating billable hours for Gaffney and Mueller's efforts on the
Reply). Since the remaining hours were reasonably expended, EPIC and
Sierra Club's counsel shall be compensated for all hours claimed in the
B. Reasonable Hourly Rate
The last issue before the court is whether the hourly rates requested
by plaintiffs, ranging from $145.00 to $400.00 an hour, are
reasonable.*fn10 Determining a reasonable hourly rate is a critical
inquiry. Jordan v. Multnomah County, 815 F.2d 1258, 1262 (9th Cir.
1987). The court must consider several factors including the experience,
skill and reputation of the applicant. Chalmers, 796 F.2d at 1210. The
court must look to the prevailing rate in the community for similar work
performed by attorneys of comparable skill, experience and reputation; it
may not refer to the rates actually charged to the prevailing party. Id.
at 1210-11. It is the applicant's burden to produce evidence, other than
the declarations of interested counsel, that "the requested rates are in
line with those prevailing in the community for similar services of
lawyers of reasonably comparable skill and reputation." Jordan, 815 F.2d
at 1263. In addition, in figuring a reasonable fee, the court should
consider the outcome of the action, the customary fees, whether a
contingent fee arrangement is involved and the novelty or difficulty
of the issues presented. Chalmers, 796 F.2d at 1211 (citing Kerr v.
Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert.
denied, 425 U.S. 951 (1976); Hamner v. Rios, 769 F.2d 1404,
1407-09 (9th Cir. 1985)).
Plaintiffs have provided declarations from disinterested attorneys
attesting to the complexity of environmental litigation; the skill
required to litigate issues similar to those in this case; the
experience, ability and quality of work of plaintiffs' counsel; and the
rates charged by attorneys in San Francisco with similar expertise and
experience. See Pearl Dec. (Dec. 19, 2001); Brecher Dec. (June 21, 1999)
¶ 6; Pearl Dec. (June 21, 1999); Rosen Dec. (June 21, 1999). These
declarations and the declarations of plaintiffs' attorneys all support
the reasonableness of the hourly rates requested.
Defendants respond to this evidence with arguments that plaintiffs are
not entitled to fees because they did not achieve sufficient success on
the merits. Defendants do not submit any declarations or exhibits to
counter plaintiffs' evidence that
the requested rates are reasonable. In
fact, "PALCO does not challenge the reasonableness of the hourly rates
charged by Plaintiffs' lawyers." Defs.' Renewed Opp'n at 1:15-16. The
court therefore finds that the hourly rates requested by plaintiffs are
C. Corrected Lodestar
In their motion, plaintiffs submit a revised lodestar request. This
request reflects (1) a modified original award, eliminating hours
associated with plaintiffs' response to the Order to Show Cause; (2)
post-judgment interest on that award; and (3) fees and costs associated
with the renewed motion. The following chart represents the hours and
corresponding fee award of plaintiffs' counsel based on the documentation
1. Original Award, After Reductions
Attorney Hours Rate Total for Fees Costs Submitted
Sharon Duggan 244.45 $275 $67,223.75 $1,459.98
Brian Gaffney 284.30 $200 $56,860.00 $1,020.80 $5,528.28
Tara Mueller 187.30 $210 $39,333.00 $272.08
Brendan Cummings 219.20 $145 $31,784.00 $571.17
Richard Pearl 62.35 $350 $21,822.50 $233.11
SUBTOTAL $217,023.25 $9,085.42
2. Interest on Original Award
Plaintiffs further request interest on the original award at 5.2% from
August 20, 1999, the date of the original judgment. Entitlement to
post-judgment interest on the fee award is well-established. See Perkins
v. Standard Oil Co., 487 F.2d 672, 674-76 (9th Cir. 1973). Such an award
encourages private citizen enforcement of the ESA. Hobbs v. Director,
Office of Workers Comp. Programs, 820 F.2d 1528 (9th Cir. 1987)
(endorsing interest on a fee award as a necessary means to "encourag[e]
private enforcement of the statutes themselves"). This increases the
original award by $31,342.83.
3. Fees for the Renewed Motion for Attorneys' Fees
Time spent completing the fee petition is compensable. See Thompson v.
Gomez, 45 F.3d 1365 (9th Cir. 1995); Gates v. Rowland, 39 F.3d 1439 (9th
Cir. 1994). The following chart reflects the hours expended by
plaintiffs' counsel preparing the Renewed Motion for Attorneys' Fees and
Attorney Hours Rate Total for Fees Costs Submitted
Brian Gaffney 32.80 275 $9,020.00
Richard M. Pearl 73.30 400 $29,320.00 $155.55
SUBTOTAL $38,340.00 $155.55
Plaintiffs thus request a total fee award of $295,797.05. Plaintiffs
are entitled to attorneys' fees under the ESA because they have advanced
the goals of the Act. Plaintiffs' lodestar is reasonable given the
complexity of the litigation and the skill of they attorneys.
For the foregoing reasons, IT IS HEREBY ORDERED that plaintiffs'
for attorneys' fees and costs is GRANTED in the amount
$295,797.05. Defendants are hereby ordered to pay the above amount to
plaintiffs within sixty (60) days of the date of this order.
IT IS SO ORDERED.