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Student Pub. Interest Research Group of N.J. v. Anchor Thread Co.

Citation: 19 ELR 20665
No. No. 84-320 (GEB), 28 ERC 1121/(D.N.J., 05/12/1988) Attorneys fees awarded<D>

The court holds that attorneys fees are appropriate in a Federal Water Pollution Control Act (FWPCA) citizen suit, but expenses incurred prior to the filing of the notice of intent to sue are not compensable. The court first holds that attorneys fees are appropriate under FWPCA § 505(d). Plaintiffs achieved some success, since the court granted summary judgment on liability in their favor and the parties' settlement required defendant to pay civil penalties to the federal treasury. The court then rules that expenses incurred prior to the filing of the notice of intent to sue are not compensable under the FWPCA. The notice of intent to sue constitutes the beginning of citizen suit litigation in much the same way that the filing of a complaint constitutes the beginning of other types of litigation. The court holds that plaintiffs may recover fees for time spent drafting the notice of intent to sue, and upholds the magistrate's grant of approximately seven hours for this expense. The court rules that the FWPCA expressly authorizes expert witness fees in excess of the general federal fee provisions in 28 U.S.C. §§ 1821 and 1920, which provide for fees of $ 30 per day. FWPCA § 505(d) specifically includes reasonable expert witness fees as part of litigation costs that may be recovered. If Congress had intended for the general federal provisions to apply, it would not have expressly authorized compensation of reasonable expert witness fees in the FWPCA. The court holds that an hourly rate of $ 65 per day for plaintiffs' engineering expert is reasonable, but denies an economist's fees since his work is not adequately specified.

The court rules that reasonable attorneys fees under FWPCA § 505(d) include out-of-pocket expenses such as postage, telephone calls, and other miscellaneous expenses. The court denies plaintiffs' overnight postal charges and secretarial overtime expenses, holding that plaintiffs have not shown that these expenses were necessary. The court disallows certain photocopying expenses as not being sufficiently documented and disallows some attorney travel costs. The court holds that fees for work common to this case and 26 similar FWPCA citizen suits brought by plaintiffs are inappropriate, since it is impossible for the court to determine to what extent the common work relates to the instant case. The court holds that the use of Washington, D.C., attorney hourly rates is appropriate, since there is no reasonable basis to assume that there is any difference between markets in Washington, D.C., and New Jersey, where this case arose. The court allows the fees of plaintiffs' local counsel, even though they did not enter an appearance, since this court's [19 ELR 20666] rules require that local counsel be designated and defendant has not shown that local counsel was not helpful to the case. The court disallows fee requests that the magistrate found to be inadequately described or illegible, although plaintiffs have submitted descriptions to cure the defects. The court holds that the lodestar should be reduced by one-third to reflect plaintiffs' incomplete success, and disallows certain fees that it considers excessive for the type of task performed. The court orders a delay-in-payment adjustment for the time between entry of the consent decree and this opinion.

[Subsequent decisions in this litigation are published at 19 ELR 20670 and 20671. The court's decision on the merits is published at 15 ELR 20964.]

Counsel for Plaintiff
Edward Lloyd, Bruce J. Terris
Terris, Edgecombe, Hecker & Wayne
1211 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendant
Douglas J. Smillie
Clark, Ladner, Fortenbaugh & Young
Ste. 104, One Centennial Square, Haddonfield NJ 08033
(609) 429-5351