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Save Our Cumberland Mountains v. Hodel

Citation: 17 ELR 20594
No. No. 81-2134, 651 F. Supp. 1528/(D.D.C., 12/23/1986) Attorneys fees awarded

The court awards attorneys fees, including an upwards adjustment in the lodestar to account for risk and exceptional success, in a citizen suit brought by two environmental groups against the Department of the Interior to compel enforcement under § 520 of the Surface Mining Control and Reclamation Act (SMCRA). The suit, which was eventually settled in plaintiffs' favor, was brought to compel enforcement action against surface mine operators who had been cited for violations of the Act and issued cease and desist orders but who had never been fined, as well as against operators who had failed to comply with enforcement orders. The court first holds that the number of hours claimed by plaintiffs' attorneys is reasonable. Plaintiffs provided extensive documentation for the hours claimed on all phases of this difficult and legally complex litigation, which included the proceedings on the merits, appellate proceedings and petition for rehearing, settlement negotiations, monitoring of the original district court order and the settlement order, and fee petitions. The documentation included a day-by-day breakdown of the time spent by every attorney involved on each segment of the case and a description of the hours excluded from the fee request in the exercise of billing judgment. The court holds that the hours claimed for time spent in the district court proceedings preparing the complaint and reviewing other attorneys' work were reasonable. The court rejects the government's argument that plaintiffs are not entitled to fees for the initial appellate proceedings in which plaintiffs were denied relief, since plaintiffs, in the end, achieved substantial success in the settlement. The court holds that the second group of attorneys called in are also entitled to fees. It was reasonable for the original counsel to spread the risk, given the chances of losing on appeal, and the attorneys hired had significant experience in regulatory litigation. The court holds that plaintiffs are entitled to fees claimed for time spent in settlement negotiations. The court allows all of the hours claimed for work involved in monitoring the government's compliance with the court's two orders, the 1982 order granting relief and the 1985 settlement order. The claims for fees for time spent in disputes concerning plaintiffs' access to Department of the Interior computer records are reasonable, since plaintiffs needed the information to effectively monitor the government's compliance. The court allows the full amount of hours claimed for the fee petition filed in connection with the original district court order, but decreases by 25 percent the claims of two attorneys in connection with work done on the settlement order. Although the second petition was not merely an update of the first, as the government claims, some duplication of research efforts was evident. The court also holds that plaintiffs are entitled to fees for time claimed for work conducted by paralegals and law clerks.

The court next holds that the hourly rates to be used in calculating the lodestar figure are the rates applicable at the time the services were provided, rejecting plaintiffs' argument that their attorneys should be paid at their current hourly rates to compensate for delay in payment. The court declines to make distinctions among counsel depending on the type of work performed, since none of the firms involved made any such distinctions themselves and such differentiation is extremely rare in the legal community. The court holds that all of the attorneys involved are entitled to fees, rejecting defendants' argument that plaintiffs used an excessive number of senior lawyers. The court also holds that the rates requested by plaintiffs do not exceed the market rates during 1982-1983 for the Washington, D.C., area. Turning to the question of the appropriate rates for the different firms involved, the court approves rates of $125-200 for a senior attorney and $70-110 for a mid-level attorney employed in private practice. The court awards rates of $100-150 for the more experienced attorneys from a public interest law firm that normally does not charge fees to clients, holding that $75 per hour is appropriate for the recent law school graduates. The court holds that the prevailing market rate is the appropriate rate to be applied for three attorneys engaged in public interest practice but who did receive some payment from those clients. The court applies rates of $115-150 for two of those attorneys, and $85-90 for one attorney who had commercial clients during the period of this litigation.

The court holds that plaintiffs are entitled to an upwards adjustment in thelodestar to account for risk. The attorneys' rates, which are based on average historical market rates prevailing in the community, do not take into account the risk of complete nonpayment. Counsel had no fee arrangements with either client, thus assuring that they were assuming the full risk, which was significant. Pursuing the litigation was a significant risk legally, since many of SMCRA's provisions at issue were still untested. The court awards a 5 percent increase in the lodestar to account for the contingent nature of the case. The court also awards a 10 percent adjustment for plaintiffs' exceptional success in the litigation. Plaintiffs' suit was instrumental in establishing SMCRA's regulatory framework and in preventing further widespread, harmful violations of the Act by mining operators. The suit was also successful in bringing the Department of the Interior's poor enforcement record to the attention of Congress. The court holds that the adjustments to the lodestar apply only to work done in connection with the litigation's merits, and not to the fee petition.

The court holds that plaintiffs are entitled to their reasonable litigation costs under § 520(d) of SMCRA, and that these reasonable litigation costs include reimbursement for expenses incurred while monitoring the settlement agreement. The court also holds that plaintiffs are entitled to compensation for travel to mine sites during the monitoring phase, photocopying, long distance telephone calls, and computer research.

[The decisions on the merits are published at 13 ELR 20284, 20531; and 14 ELR 20205.]

Counsel for Plaintiffs
Brent N. Rushforth
Dow, Lohnes & Albertson
1255 23rd St. NW, Washington DC 20037
(202) 857-2500

Counsel for Defendants
Alfred T. Ghiorzi
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-2306