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American Petroleum Inst. v. EPA

ELR Citation: 26 ELR 20559
Nos. Nos. 94-1502 et al., 72 F.3d 907/42 ERC 1008/(D.C. Cir., 01/09/1996) attorney fees granted

The court grants attorney fees of $237,997.03 to petroleum trade organizations that successfully challenged U.S. Environmental Protection Agency (EPA) regulations implementing the reformulated gasoline program established by Clean Air Act (CAA) §211(k). The court first notes that the government concedes that the organizations are entitled to an award of reasonable attorney fees under CAA §307(f). The court rejects the government's argument that the court should eliminate fees attributable to the organizations' arguments on which the court did not rely in rendering its decision on the merits. These arguments are not separate claims. The court holds that the rates of the organizations' attorneys are reasonable, but the court deducts $1,000 to correct an apparent error in calculation and further adjusts the fee award for several items as to which the organizations have not carried their burden of establishing sufficient reasonableness.

With respect to time spent on filing documents in court, the court deducts two partners' time by eight and one-half hours and subtracts the paralegal bill by $130. The court deducts the one hour a partner spent attending a press conference. The court deducts time a partner spent attending a congressional hearing and oral argument in a case on a related issue, because these are akin to the defensive monitoring of other prosecutions that the court has declined to reimburse. The court allows the fees for discussing the related case, because the time spent by an attorney analyzing a relevant precedent is a traditional cost of litigation. The court deducts the time two partners spent preparing a petition for review filed by another organization, because these fees are properly attributable to that organization. The court deducts time spent on a motion for summary reversal, because attorneys with the skill and experience of the organizations' counsel should have known that there was no chance the court would allow a motion for summary reversal in a matter of this novelty and complexity. The court next holds that the organizations have carried their burden of persuasion on the reasonableness of only 75 percent of the hours spent on their motions. The court makes no adjustment for the allocation of time between partners and associates, because the case was complex and difficult and the clients came to the law firm because of the partners' skill. The court holds that the organizations carried their burden of establishing the reasonableness of attorney time spent writing the opening brief, but failed to explain why it was necessary to spend substantially more time on the reply brief than on the opening brief. The court, therefore, reduces the reimbursable time for the reply brief from 120 to 60 hours. The court reduces the reimbursable hours spent on the opening argument to 80 hours, because the partner was obviously familiar with the case from his work on motions and briefs. The court holds that the amount of time spent evaluating EPA's petition for rehearing was reasonable, but reduces the amount of reimbursable time spent on the motion for attorney fees to 60 hours of associate time and 30 hours of partner time.

[The organizations' motion for an award of attorney fees is digested at ELR BRIEFS & PLEADS. 66404. The court's opinion on the merits is published at 25 ELR 20824.]

Counsel for Petitioners
Michael F. McBride
LeBoeuf, Lamb, Greene & MacRae
1875 Connecticut Ave. NW, Ste. 1200, Washington DC 20009
(202) 986-8000

Counsel for Respondents
Mary E. Ward
Environment and Natural Resources Division
U.S. Department of Justice,Washington DC 20530
(202) 514-2000

Before WILLIAMS, SENTELLE, and RANDOLPH, Circuit Judges.