Summary of a Recent
Judicial Development in
Environmental Law

Attorney Fee Awards Under the Equal Access
to Justice Act Must Be Reasonable

Eric H. Foy
National AgLaw Center Research Associate

Summary of Decision

In Citizens for Better Forestry v. U.S. Department of Agriculture, Nos. C 05-1144 PJH, C 04-4512 PJH, 2008 WL 5210945 (N.D. Cal. Dec. 11, 2008), the United States District Court for the Northern District California granted in part and denied in part the plaintiffs' motion for attorney fees and costs. The plaintiffs asserted five claims for relief under the Administrative Procedure Act (APA), 5 U.S.C. § 553, the National Forest Management Act (NFMA), 16 U.S.C. § 1600, and the National Environmental Policy Act (NEPA), 42 U.S.C. § 4231, against the United States Department of Agriculture (USDA). The court held that the number of hours claimed by the plaintiffs' counsel for allegations under the Equal Access to Justice Act (EAJA) were unreasonable and reduced the total hours claimed.

Background

On September 29, 2004, the USDA passed a rule that plaintiffs claimed rescinded numerous environmental protection requirements implementing the National Forest Management Act (NFMA), 16 U.S.C. § 1600. Id. at *1. The plaintiffs claimed the rule represented a sweeping legislative effect promulgated without public notice or public comment. Id. Specifically, the plaintiffs claimed that the rule was legislative rather than interpretive; therefore, it was not exempt from public notice and public comment as required by the APA. Id. On October 26, 2004, the plaintiffs filed five claims for relief against the USDA, including claims under the APA, the NFMA, and NEPA. Id. at *2. The plaintiffs asserted that by failing to comply with basic notice and comment requirements, the USDA had violated the APA and sought attorney fees under the EAJA. Id.

Arguments

The plaintiffs claimed that they were entitled to attorney fees and costs under the EAJA for their NEPA and APA claims. Id. Additionally, because the ESA contained a citizen suit provision, they claimed they were entitled to attorney fees under the ESA as well. Id.

The USDA sought several reductions in the plaintiffs' requested fees. Id. at *9.

Analysis and Holdings

The EAJA "allows prevailing parties to recover attorneys' fees in cases brought by or against the United States . . . ." Id. at *2 (citing 28 U.S.C § 2412). When an eligible party timely applies, an award of attorney fees is mandatory unless the government can show that its position was "substantially justified or special circumstances exist that make an award of fees unjust." Id. To meet this burden, the government must show that its position has "a reasonable basis both in law and fact." Id. at *3. The EAJA's attorney fees rule is

based upon the prevailing market rates for the kind and quality of the services furnished, capped at $125 per hour, unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee.
Id. (citing 28 U.S.C. § 2412(d)(1)(D)(2) (A), internal quotations omitted).

Additionally, the EAJA allows a prevailing party to "recover litigation expenses and costs in addition to attorneys' fees," including "those that are normally billed to a client, such as telephone calls, postage, and attorney travel expenses." Id. (citing 28 U.S.C. §§ 2412(a)(1) and (d)(1)(A)). Reasonable attorney fees under the EAJA are calculated according to "prevailing market rates in the relevant legal community, with close attention paid to the fees charged by lawyers of reasonably comparable skill, experience and reputation." Id. at *4 (quoting Marbled Murrelet v. Pac. Lumber Co., 163 F.R.D. 308, 316 (N.D. Cal.1995)).

After reviewing the time records kept by the plaintiffs' attorneys, the court noticed several discrepancies and overlaps in billed hours. The court felt that the discrepancies and total billed hours were unreasonable; for this reason, the court reduced the plaintiffs' attorney fees, denying in part and granting in part the plaintiffs' motion for attorney fees and costs. Id. at *12.

The case was decided on December 11, 2008.