Summary of a Recent
Judicial Development in
Environmental Law

Award of Attorney Fees under the EAJA
Under Different Statutory Regimes

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Center for Food Safety v. Johanns, Civ. No. 03-00621 JMS/BMK, 2007 WL 3072860 (D. Haw. Oct. 18, 2007), the United States District Court for the District of Hawaii granted in part and denied in part the plaintiffs' motion for attorney fees and costs. The plaintiffs brought suit against the United States Animal and Plant Health Inspection Service (APHIS), a division of the United States Department of Agriculture (USDA), for issuing permits allowing four companies to conduct field tests of genetically engineered pharmaceutical-producing plant varieties (GEPPVs). The plaintiffs claimed the issuances violated the National Environmental Policy Act (NEPA) and § 7(a)(2) of the Endangered Species Act (ESA), and sought declaratory and injunctive relief. The court affirmed the district court's decision to award attorney fees and costs, but modified the award to reflect the attorneys' lack of success on two claims.

Background

In 2003, the plaintiffs (Center for Food Safety, Kahea, Friends of the Earth, and Pesticide Action Network North America) filed eleven claims against APHIS alleging that the agency violated NEPA and the ESA by granting permits to four companies authorizing the testing of GEPPVs from 2001 to 2003. Id. at *1. On March 31, 2006, the parties filed cross-motions for summary judgment. Id. at *3. On August 31, 2006, the court granted in part and denied in part each party's motions for summary judgment. Id. It granted the plaintiffs' motion on eight counts and granted the defendants' motion on three counts. Id. Although the plaintiffs' successfully obtained declaratory relief, the court denied the plaintiffs' request for injunctive relief. Id. On September 21, 2006, the plaintiffs motioned for attorney fees and costs under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, and the ESA, 16 U.S.C. §§ 1531-34. Id. at *4. The court awarded the plaintiffs $487,281 for attorney fees and $12,646 for costs and other expenses. Id. Both parties opposed the award. Id.

Arguments

The defendants argued that the plaintiffs were not eligible for attorney fees or costs since they were not prevailing parties. Id. In the alternative, the defendants requested the court to reduce the award to $345,969. Id.

The plaintiffs asserted that: "(1) fees for NEPA-related work should be compensated at market rates rather than the statutory EAJA rate; and (2) Plaintiffs [were] entitled to market rates for their successful ESA claims and not the lower EAJA rate." Id.

Analysis and Holdings

The EAJA states that "[e]xcept as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . ." Id. at *5 (quoting 28 U.S.C. § 2412(d)(1)(A)). To be a prevailing party, a plaintiff must "succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." Id. Even parties who achieve only declaratory relief may be prevailing parties and receive attorney fees and costs pursuant to the EAJA. Id. In the case at bar, the declaratory relief obtained by the plaintiffs necessarily affected future APHIS decisions. Id. at *6. Because the plaintiffs prevailed on eight of their eleven claims, the court held that the plaintiffs were prevailing parties. Id. For this reason, the court adopted the district court's finding that the plaintiffs were entitled to attorney fees pursuant to the EAJA. Id. at *7. Additionally, the court held that the plaintiffs were entitled to attorney fees under the ESA, 16 U.S.C. § 1540(g)(4). Id. Under the ESA, the court can award litigation expenses "to any party, whenever the court determines such an award is appropriate." Id.

The parties disagreed on the number of hours the plaintiffs' attorneys spent on their unsuccessful claims. Id. at *8-9. To resolve the dispute, the court considered "the significance of the overall relief obtained by [p]laintiffs in relation to the hours reasonably expended on the litigation." Id. at *9. After carefully reviewing the entire record of the case and the billing record, and utilizing the court's knowledge of the instant litigation, the court adopted the district court's 9% reduction for their "lack of success on counts 5 and 10." Id.

Rather then being compensated at the standard rate for NEPA-related work, the plaintiffs claimed their attorneys should be compensated at the market rate for both their NEPA and ESA claims. Id. However, the court held that the plaintiffs presented "no evidence that the distinctive skills were not available elsewhere at the statutory rate." Id. For this reason, the court awarded "fees at the inflation-adjusted statutory rate rather than market rates under the EAJA." Id. at *12. However, the court awarded the market rate for the plaintiffs' ESA claims, because to do otherwise would have essentially punished the plaintiffs for succeeding on their EAJA claims. Id. Additionally, the instant court had previously held that "it was improper to cap the hourly rate for the entire award at the rate set under the EAJA, rather than awarding a market rate for hours spent on [claims outside the reach of EAJA]." Id. (citing Sorenson v. Mink, 239 F.3d 1140, 1149-50 (9th Cir. 2001)).

The case was decided on October 18, 2007.