Dec 15: In the U.S. Court of Appeals, Ninth Circuit, Case No. 08-35463. The Appeals Court explains, "We must decide whether environmental organizations are prevailing parties within the meaning of the Equal Access to Justice Act when, before judgment, the Bureau of Land Management [BLM] withdraws its challenged decision to conduct a timber sale." The "prevailing party" issue is important because Congress has passed many statutes to allow parties who sue the United States to recover attorney’s fees in certain circumstances, but only if they are the “prevailing parties” in the lawsuit. The Appeals Court cites: Buckhannon Bd. v. W.Va. Dep’t of Health and Human Res., 532 U.S. 598, 600 (2001).
Plaintiffs Klamath Siskiyou Wildlands Center, Cascadia Wildlands Project, and Umpqua Watersheds (Klamath) sued the Bureau of Land Management of the United States Department of the Interior (BLM), alleging that a planned timber sale in the Willy Slide area of the Medford District, among other decisions, violated the National Environmental Protection Act (NEPA) and the Forest Lands Policy and Management Act (FLPMA). Klamath sought “a preliminary injunction; a declaration that the challenged decision violated certain laws; a permanent injunction against the project until the BLM complied with those laws; and an award of costs and
attorneys fees.”
In this case, which has many nuisances, the Appeals Court rules, "In summary, we conclude that Klamath is not a prevailing party in this case because neither the stipulated order, the magistrate judge’s F&R, nor the binding ruling in Boody, a separate case, amounts to a 'material alteration of the legal relationship of the parties' that is 'judicially sanctioned,' as required in Buckhannon. For the foregoing reasons, the district court’s grant of attorney’s fees and costs to Klamath is reversed and vacated. The case is remanded for further proceedings consistent with this opinion.
Access the complete opinion (click here).
Showing posts with label Attorney Fees. Show all posts
Showing posts with label Attorney Fees. Show all posts
Wednesday, December 16, 2009
Wednesday, September 23, 2009
Stanley v. United States Steel Corporation
Sep 22: In the U.S. Court of Appeals, Sixth Circuit, Case Nos. 08-2311 & 082312. The Appeals Court explained that Malcolm Moulton challenges the district court’s approval of a settlement agreement arising from a class action filed by the neighbors of a steel mill owned by United States Steel Corporation. A group of other class members, led by Ron Anderson, join Moulton’s objections, and separately challenge the district court’s management of the opt-out process and its handling of attorney Donnelly Hadden’s attempts to represent them. We affirm, except with respect to the district court’s approval of the attorney’s fee award, which we vacate and remand for further explanation.
In 2003, U.S. Steel purchased a steel mill bordering Ecorse and River Rouge, Michigan. At the time, the mill’s pollution-control equipment was in disrepair. After purchasing the mill, the company spent $65 million to upgrade the old pollution-control equipment and to buy new equipment. About a year after the purchase, several residents of Ecorse and River Rouge filed a class-action lawsuit against the company. The plaintiffs raised several tort and statutory claims, all to the effect that the mill wrongfully discharged harmful “metal-like dust and flakes” that settled on their real and personal property.
The case basically involves class action procedures and the conduct of attorney Hadden. In part, the Appeals Court rules, "At no point has Hadden offered evidence on the record that the 34 “missing” opt-out forms were mailed to Class Counsel. Lacking any evidence that these class members opted out, Hadden cannot demonstrate that an error occurred, much less that the district court abused its discretion by not correcting it. . . We also reject Hadden’s claim that the district court abused its discretion by not accepting opt-out forms that Hadden signed, purportedly at his clients’ request. We have serious doubts at the outset whether these clients requested that Hadden sign their form, or if they merely failed to respond to Hadden’s letter -- triggering Hadden’s 'automatic' opt out on his terms. Even setting this skepticism aside, we find none of his arguments persuasive. . .
"The Michigan Constitution’s guarantee of 'the right to prosecute . . . [a] suit . . . by an attorney,' Mich. Const. Art. I, § 13, does not save his argument. The Hadden clients who opted out of the suit had an attorney: Hadden. And those who remained in the class were adequately represented by court-approved Class Counsel."
Access the complete opinion (click here).
In 2003, U.S. Steel purchased a steel mill bordering Ecorse and River Rouge, Michigan. At the time, the mill’s pollution-control equipment was in disrepair. After purchasing the mill, the company spent $65 million to upgrade the old pollution-control equipment and to buy new equipment. About a year after the purchase, several residents of Ecorse and River Rouge filed a class-action lawsuit against the company. The plaintiffs raised several tort and statutory claims, all to the effect that the mill wrongfully discharged harmful “metal-like dust and flakes” that settled on their real and personal property.
The case basically involves class action procedures and the conduct of attorney Hadden. In part, the Appeals Court rules, "At no point has Hadden offered evidence on the record that the 34 “missing” opt-out forms were mailed to Class Counsel. Lacking any evidence that these class members opted out, Hadden cannot demonstrate that an error occurred, much less that the district court abused its discretion by not correcting it. . . We also reject Hadden’s claim that the district court abused its discretion by not accepting opt-out forms that Hadden signed, purportedly at his clients’ request. We have serious doubts at the outset whether these clients requested that Hadden sign their form, or if they merely failed to respond to Hadden’s letter -- triggering Hadden’s 'automatic' opt out on his terms. Even setting this skepticism aside, we find none of his arguments persuasive. . .
"The Michigan Constitution’s guarantee of 'the right to prosecute . . . [a] suit . . . by an attorney,' Mich. Const. Art. I, § 13, does not save his argument. The Hadden clients who opted out of the suit had an attorney: Hadden. And those who remained in the class were adequately represented by court-approved Class Counsel."
Access the complete opinion (click here).
Friday, July 17, 2009
St. John's Organic Farm v. Gem County Mosquito Abatement
Jul 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-35797. Plaintiffs Saint John’s Organic Farm and Peter Dill (collectively, Dill) filed suit under the citizen-suit provisions of the Clean Water Act (CWA) against the Gem County Mosquito Abatement District and Gem County (collectively, GCMAD). Dill alleged that GCMAD’s discharges of pesticides directly into the waters of the United States without a National Pollutant Discharge Elimination System (NPDES) permit violated the CWA. Dill and GCMAD settled the suit.
The Settlement Agreement (Agreement) limited GCMAD’s pesticide spraying in several ways and provided that an application for “costs of litigation (including reasonable attorney and expert witness fees)” under 33 U.S.C. § 1365(d) could be made to the district court. The district court denied Dill’s attorney’s fees application, holding under § 1365(d) that Dill was not a “prevailing or substantially prevailing party” and, in the alternative, that it was not “appropriate” to grant fees to Dill.
The Appeals Court reversed the district court decision holding "that Dill was a prevailing party under § 1365(d)." The case was remanded to the district court to consider whether fees are appropriate under the standard articulated in this opinion. In a separate concurring opinion one of the Justices explains, "we employ 'a two-pronged test to determine whether special circumstances exist to justify denying attorney’s fees.' . . .This test requires a showing whether (1) 'awarding the attorney’s fees would further the purposes' of the statute, and (2) 'the balance of equities favors or disfavors the denial of fees.'"
The Justice said further, ". . .the policy implications of today’s holding concern me. Courts should not be interpreting attorney’s fee requirements in such a way as to discourage settlement. If today’s holding is read too literally, I believe there is a disincentive for parties in environmental litigation to negotiate a settlement."
Access the complete opinion (click here).
The Settlement Agreement (Agreement) limited GCMAD’s pesticide spraying in several ways and provided that an application for “costs of litigation (including reasonable attorney and expert witness fees)” under 33 U.S.C. § 1365(d) could be made to the district court. The district court denied Dill’s attorney’s fees application, holding under § 1365(d) that Dill was not a “prevailing or substantially prevailing party” and, in the alternative, that it was not “appropriate” to grant fees to Dill.
The Appeals Court reversed the district court decision holding "that Dill was a prevailing party under § 1365(d)." The case was remanded to the district court to consider whether fees are appropriate under the standard articulated in this opinion. In a separate concurring opinion one of the Justices explains, "we employ 'a two-pronged test to determine whether special circumstances exist to justify denying attorney’s fees.' . . .This test requires a showing whether (1) 'awarding the attorney’s fees would further the purposes' of the statute, and (2) 'the balance of equities favors or disfavors the denial of fees.'"
The Justice said further, ". . .the policy implications of today’s holding concern me. Courts should not be interpreting attorney’s fee requirements in such a way as to discourage settlement. If today’s holding is read too literally, I believe there is a disincentive for parties in environmental litigation to negotiate a settlement."
Access the complete opinion (click here).
Thursday, July 9, 2009
Oregon Natural Desert Association v. Locke
Jul 8: In the U.S. Court of Appeals, Ninth Circuit, Case No. 06-35851. The Department of Commerce, National Oceanic and Atmospheric Administration Fisheries (NOAA Fisheries) and National Marine Fisheries Services (collectively, Commerce) appeal the district court’s order granting attorney fees and costs under the Freedom of Information Act (FOIA), in favor of Oregon Natural Desert Association (ONDA). The district court issued the attorney fees order after it entered judgment in ONDA’s action alleging unlawful withholding of requested documents and use of unlawful processing regulations in violation of the FOIA and the Administrative Procedure Act (APA).
The Appeals Court affirmed in part, reverse in part, and remand for recalculation of the attorney fee award. The Appeals Court said, "On two of its claims, ONDA was not a substantially prevailing party under Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598 (2001). As to those claims, the defendants provided the documents ONDA requested before the district court ordered that they be turned over. ONDA was successful in obtaining the documents, but it succeeded by use of the catalyst theory of recovery, and not by either a judgment on the merits or a court-ordered consent decree as required by Buckhannon. Id. at 604."
The Appeals Court said further, "The Openness Promotes Effectiveness in our National Government Act (the '2007 Amendments' to the FOIA) authorizes the payment of attorney fees when documents such as those sought by ONDA are recovered using a catalyst theory, but those Amendments were signed into law after the district court entered its attorney fees order, and they do not apply retroactively to this case. ONDA is not eligible for the recovery of attorney fees on its first two claims. Nor is it eligible for attorney fees on its third claim, which it lost. But, it is eligible for an award of attorney fees on its fourth claim for its successful challenge to the cut-off regulation."
Access the complete opinion (click here).
The Appeals Court affirmed in part, reverse in part, and remand for recalculation of the attorney fee award. The Appeals Court said, "On two of its claims, ONDA was not a substantially prevailing party under Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t. of Health & Human Res., 532 U.S. 598 (2001). As to those claims, the defendants provided the documents ONDA requested before the district court ordered that they be turned over. ONDA was successful in obtaining the documents, but it succeeded by use of the catalyst theory of recovery, and not by either a judgment on the merits or a court-ordered consent decree as required by Buckhannon. Id. at 604."
The Appeals Court said further, "The Openness Promotes Effectiveness in our National Government Act (the '2007 Amendments' to the FOIA) authorizes the payment of attorney fees when documents such as those sought by ONDA are recovered using a catalyst theory, but those Amendments were signed into law after the district court entered its attorney fees order, and they do not apply retroactively to this case. ONDA is not eligible for the recovery of attorney fees on its first two claims. Nor is it eligible for attorney fees on its third claim, which it lost. But, it is eligible for an award of attorney fees on its fourth claim for its successful challenge to the cut-off regulation."
Access the complete opinion (click here).
Thursday, June 11, 2009
West Virginia Highlands Conservancy v. Kempthorne
Jun 10: In the U.S. Court of Appeals, Fourth Circuit, Case No. 07-2189. The appeal arises from the Interior Board of Land Appeals’ (IBLA or Board) determination that the West Virginia Highlands Conservancy (WVHC) was not eligible for attorneys’ fees after prosecuting an administrative appeal to the IBLA. In the administrative appeal WVHC had challenged a decision of the Office of Surface Mining Reclamation and Enforcement (OSM) that rejected a citizen complaint filed by WVHC with the agency.
The appeal resulted in an IBLA remand order directing OSM to perform certain regulatory duties, including an investigation into whether it was required to reassert regulatory jurisdiction over a particular surface mining reclamation site pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
After the IBLA denied WVHC’s petition for attorneys’ fees in connection with the appeal, WVHC sought review of the denial in district court. The district court granted summary judgment to WVHC, holding that WVHC was eligible for an award of fees under SMCRA’s fee-shifting provision. The Appeals Court affirmed the district court ruling.
Access the complete opinion (click here).
The appeal resulted in an IBLA remand order directing OSM to perform certain regulatory duties, including an investigation into whether it was required to reassert regulatory jurisdiction over a particular surface mining reclamation site pursuant to the Surface Mining Control and Reclamation Act of 1977 (SMCRA).
After the IBLA denied WVHC’s petition for attorneys’ fees in connection with the appeal, WVHC sought review of the denial in district court. The district court granted summary judgment to WVHC, holding that WVHC was eligible for an award of fees under SMCRA’s fee-shifting provision. The Appeals Court affirmed the district court ruling.
Access the complete opinion (click here).
Wednesday, June 10, 2009
Citizens for Better Forestry v. USDA
Jun 9: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-16077. The United States Department of Agriculture (USDA), which includes the Forest Service, appeals the district court’s award of attorneys’ fees to Citizens for Better Forestry and eleven other environmental groups (collectively, Citizens) under the Equal Access to Justice Act (EAJA). In the underlying action, Citizens sought declaratory and injunctive relief against the USDA for its promulgation of a new national forest management rule.
In a prior action, the Ninth Circuit reversed the district court’s dismissal of Citizens’ suit on standing and ripeness grounds and remanded for a ruling on Citizens’ motion for injunctive relief. However, before the district court could reconsider the motion, the USDA withdrew the contested rule. Citizens then stipulated to dismiss its case and moved for attorneys’ fees. The Appeals Court ruled that because Citizens received no relief from any court, it does not qualify as a “prevailing party” under the EAJA and, therefore, is not entitled to fees.
Access the complete opinion (click here).
In a prior action, the Ninth Circuit reversed the district court’s dismissal of Citizens’ suit on standing and ripeness grounds and remanded for a ruling on Citizens’ motion for injunctive relief. However, before the district court could reconsider the motion, the USDA withdrew the contested rule. Citizens then stipulated to dismiss its case and moved for attorneys’ fees. The Appeals Court ruled that because Citizens received no relief from any court, it does not qualify as a “prevailing party” under the EAJA and, therefore, is not entitled to fees.
Access the complete opinion (click here).
Wednesday, September 17, 2008
NRDC v. Winter (Department of Navy)
Sep 16: In the U.S. Court of Appeals, Ninth Circuit, Case No. 07-55294. Defendant-Appellant, Donald C. Winter (the Navy), appealed the district court’s decision to award attorneys’ fees to Plaintiffs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The Navy claimed that: (1) the amount of the award for some of the attorneys working on the case should not have been enhanced above the statutory rate; (2) the limited extent of Plaintiffs’ success merited a reduction in fees; and, (3) the award of appellate fees was improper because the fee application was filed in the district court, not in the court of appeals.
The Appeals Court said, "We conclude that the district court did not abuse its discretion on the second and third issues. However, because we conclude that the standard used by the district court to determine the first issue constitutes an error of
law, we vacate the district court’s order awarding fees and remand for additional fact finding and recalculation of fees in accordance with this opinion."
The Appeals Court summarized, "In Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991), we consolidated into a three-part test the relevant law governing what must be proven in order to be awarded enhanced attorneys’ fees: (1) 'the attorney must possess distinctive knowledge and skills developed through a practice specialty;' (2) 'those distinctive skills must be needed in the litigation;' and (3) 'those skills must not be available elsewhere at the statutory rate.' Id. at 1496. . .we remand this case to the district court for reconsideration consistent with this opinion to determine whether the Plaintiffs have met their burden of proof under the third prong of Love. If not, the district court should recalculate fees for the Plaintiffs as required. On remand, the district court should also recalculate fees for the junior Irell attorneys at the statutory rate, plus a cost of living increase."
Access the complete opinion (click here).
The Appeals Court said, "We conclude that the district court did not abuse its discretion on the second and third issues. However, because we conclude that the standard used by the district court to determine the first issue constitutes an error of
law, we vacate the district court’s order awarding fees and remand for additional fact finding and recalculation of fees in accordance with this opinion."
The Appeals Court summarized, "In Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991), we consolidated into a three-part test the relevant law governing what must be proven in order to be awarded enhanced attorneys’ fees: (1) 'the attorney must possess distinctive knowledge and skills developed through a practice specialty;' (2) 'those distinctive skills must be needed in the litigation;' and (3) 'those skills must not be available elsewhere at the statutory rate.' Id. at 1496. . .we remand this case to the district court for reconsideration consistent with this opinion to determine whether the Plaintiffs have met their burden of proof under the third prong of Love. If not, the district court should recalculate fees for the Plaintiffs as required. On remand, the district court should also recalculate fees for the junior Irell attorneys at the statutory rate, plus a cost of living increase."
Access the complete opinion (click here).
Thursday, August 7, 2008
Southwest Marine, Inc. v. U.S.
Aug 6: In the Court of Appeals, Ninth Circuit, Case No. 07-55229. In this dispute over attorney fees in an environmental case, appellant Southwest Marine, Inc., appealed from a judgment of the United States District Court for the Southern District of California granting summary judgment in favor of the United States and the Secretary of the Navy. The case involves the Appeals Court determining whether fees incurred by Southwest Marine during its unsuccessful defense of a private party Clean Water Act lawsuit are allowable costs under Subpart 31.2 of the Federal Acquisition Regulation (FAR). The Appeals Court ruled that Southwest Marine’s costs are not allowable and affirmed the judgment of the District Court.
Access the complete opinion (click here).
Access the complete opinion (click here).
Thursday, December 20, 2007
Ohio River Valley v. Green Valley Coal Co.
Dec 19: In the U.S. Court of Appeals, Fourth Circuit, Case No. 06-1475. Green Valley Coal Company (Green Valley) appealed the award of attorney fees in a citizen suit brought under the Surface Mining Control and Reclamation Act (SMCRA or the Act). Initially, three environmental organizations, Ohio River Valley Environmental Coalition, Inc., Hominy Creek Preservation Association, Inc., and Citizens Coal Council (collectively, OVEC), sued the Director of the West Virginia Division of Environmental Protection (the state agency) to mandate changes in the way the agency enforces its regulatory program under SMCRA.
In its complaint against the state agency, OVEC alleged that certain mining permit applications filed by Green Valley were deficient, and Green Valley intervened to defend the validity of its applications. The district court issued a preliminary injunction enjoining the State agency from approving one of Green Valley’s applications, though the injunction was later dissolved as moot after Green Valley withdrew the application. Later, OVEC filed supplemental claims against Green Valley in this litigation and a citizen complaint in the administrative arena, alleging SMCRA violations at one of Green Valley’s mining sites. Partly as a result of OVEC’s efforts, Green Valley took remedial actions at the site, which led OVEC to dismiss its claims voluntarily. OVEC ultimately moved for an award of attorney fees under SMCRA’s fee-shifting provision. The district court made a fee award that included prejudgment interest.
The Appeals Court affirmed the fee award with respect to the preliminary injunction phase (phase one) of the litigation. However, it vacated the fee award with respect to the supplemental claims phase (phase two) because that award included fees for OVEC’s efforts in the administrative arena, and fees for these efforts are not recoverable under the act. The Appeals Court said, "On remand the district court may reconsider, in light of the applicable standard, whether a fee award is appropriate for OVEC’s efforts in phase two of the litigation. We also affirm the award of prejudgment interest but vacate and remand to allow the district court to correct an apparent miscalculation."
Access the complete opinion (click here).
In its complaint against the state agency, OVEC alleged that certain mining permit applications filed by Green Valley were deficient, and Green Valley intervened to defend the validity of its applications. The district court issued a preliminary injunction enjoining the State agency from approving one of Green Valley’s applications, though the injunction was later dissolved as moot after Green Valley withdrew the application. Later, OVEC filed supplemental claims against Green Valley in this litigation and a citizen complaint in the administrative arena, alleging SMCRA violations at one of Green Valley’s mining sites. Partly as a result of OVEC’s efforts, Green Valley took remedial actions at the site, which led OVEC to dismiss its claims voluntarily. OVEC ultimately moved for an award of attorney fees under SMCRA’s fee-shifting provision. The district court made a fee award that included prejudgment interest.
The Appeals Court affirmed the fee award with respect to the preliminary injunction phase (phase one) of the litigation. However, it vacated the fee award with respect to the supplemental claims phase (phase two) because that award included fees for OVEC’s efforts in the administrative arena, and fees for these efforts are not recoverable under the act. The Appeals Court said, "On remand the district court may reconsider, in light of the applicable standard, whether a fee award is appropriate for OVEC’s efforts in phase two of the litigation. We also affirm the award of prejudgment interest but vacate and remand to allow the district court to correct an apparent miscalculation."
Access the complete opinion (click here).
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