14 ELR 20762 | Environmental Law Reporter | copyright © 1984 | All rights reserved

Oregon Environmental Council v. Kunzman

No. 82-504-RE (D. Or. August 9, 1984)

After ruling for federal defendants in this pesticide suit, 12 ELR 20769, and being reversed on appeal, 13 ELR 20901, the district court awards plaintiffs attorneys fees under the Equal Access to Justice Act (EAJA), reduced because of the attorneys' failure to properly document their time. The court holds that plaintiffs are the prevailing party since they received the relief they sought: an injunction against aerial spraying of carbaryl. The court holds that the federal government has the burden of proving that its position was substantially justified, or, in other words, reasonable. The court of appeals specifically declared that the government's position was unreasonable, and the court holds that the government's position at trial and on appeal was not substantially justified. Because plaintiffs did not keep proper time records, as required by EAJA § 2412(d)(1)(B), the court reduces the requested award by 10 percent, its estimate of the duplication of efforts by plaintiffs' attorneys. The court does not reduce the award for time spent on unsuccessful alternative claims against the federal government. It does reduce the claim by an additional 25 percent to reflect time spent on claims against non-federal defendants. Finally, the court awards $100 per hour instead of the normal EAJA § 2412(d)(2)(A) maximum of $75 per hour, due to the limited availability of qualified environmental attorneys and the length of time the attorneys have waited for compensation.

Counsel for Plaintiffs
Michael D. Axline, John E. Bonine
Pacific Northwest Resources Clinic
U. of Oregon Law Center, Eugene OR 97403
(503) 686-3823

Larry N. Sokol
Jolles, Sokol & Bernstein
721 SW Oak St., Portland OR 97205
(503) 228-6474

Counsel for Defendants
Thomas C. Lee, Ass't U.S. Attorney
312 U.S. Cthse., 620 Main St., Portland OR 97205
(503) 221-2101
Dorothy R. Burakreis
Land and Natural Resources Division, Department of Justice, Washington DC 20530
(202) 633-2769

[14 ELR 20762]

Redden, J.:


IT IS ORDERED that plaintiffs' Motion for Attorneys' Fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) is GRANTED. Plaintiffs' attorneys are awarded $59,211.50.


Plaintiffs brought this action to prohibit the aerial broadcast spraying of the insecticide carbaryl over 6,400 acres in South Salem, Oregon. Plaintiffs sought relief against the United States under the Administrative Procedures Act (APA), 5 U.S.C. §§ 702, 706, the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332, the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. §§ 135-136y, and a Federal Aviation Administration (FAA) regulation, 14 C.F.R. § 137 (1982). Plaintiffs also sought relief against the state defendants under 42 U.S.C. § 1983 for deprivation of federal rights secured by FIFRA and the FAA regulation.

At trial, I held that the federal defendants had not violated NEPA and that neither FIFRA nor the FAA regulation conferred a private right of action or rights subject to protection under 42 U.S.C. § 1983. On appeal, the Ninth Circuit determined that the federal defendants had in fact violated NEPA by failing to prepare adequate site specific environmental impact statements. Oregon Environmental Council v. Kunzman, 714 F.2d 901, 905 [13 ELR 20901] (9th Cir. 1983). The Court also held that defendants had not violated either FIFRA or the FAA regulation. Therefore, the Court held that plaintiffs' section 1983 action against the state defendants failed on the merits. Id. at 904.

On March 23, 1984, I issued an Order denying plaintiffs'petition for attorneys' fees against the state defendants pursuant to 42 U.S.C. § 1988. I held that, since plaintiffs did not prevail on their section 1983 claims, they were not entitled to attorneys' fees under section 1988. This case is now before me on plaintiffs' petition for attorneys' fees against the federal defendants pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d).

Section 2412(d)(1)(A) provides that

a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

Plaintiffs must prove that they prevailed and that the individual plaintiffs' net worth does not exceed $1,000,000. If plaintiffs do so, an award of fees is mandatory unless the government proves that its position was substantially justified.

I conclude that plaintiffs are the prevailing party. Plaintiffs sought and received an order enjoining aerial broadcast spraying of carbaryl. I also find that plaintiffs have shown that they comply with the net-worth limits contained in 28 U.S.C. § 2412(d)(2)(B).

The government thus bears the burden of proving that its position was substantially justified "and a 'strong showing' must be made to meet that burden." Environmental Defense Fund, Inc. v. Watt, 722 F.2d 1081, 1085 (9th Cir. 1983). "The test for determining whether the government's position is substantially justified is 'essentially one of reasonableness.'" Id. (footnote omitted). In determining whether the government's position was unreasonable, I am to consider "the totality of the circumstances prelitigation and during trial." Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir. 1984).

In its Opinion, the Ninth Circuit specifically found that "the agency's decision to proceed on the basis of this PEIS and EA [was] unreasonable." Kunzman, supra, 714 F.2d at 904. With regard to the NEPA claim and the requested injunction, I find that the government's litigation position at the trial level and on appeal was not substantially justified. The government has never conceded that the Programmatic Environmental Impact Statement (PEIS) and the Environmental Assessment (EA) were deficient.

Having found that plaintiffs constitute prevailing parties as defined by the EAJA and that the government's position was not substantially justified, I conclude that plaintiffs are entitled to an award of fees pursuant to 28 U.S.C. § 2412(d). Plaintiffs seek an award of attorneys' fees in the amount of $132,675. This represents a lodestar amount of $66,337.50 multiplied by a factor of two. Plaintiffs request compensation for 856.2 hours of attorneys' time and 84 hours of law clerks' time. The lodestar amount for attorneys is $75 an hour; the lodestar amount for the law clerks is $25 an hour.

Section 2412(d)(1)(B) provides that a party seeking fees shall file a petition "including an itemized statement from any attorney . . . representing or appearing in behalf of the party stating the actual time expended . . . ." 28 U.S.C. § 2412(d)(1)(B). Plaintiffs attorneys admit that they did not keep contemporaneous time records, even though this action was brought after the effective date of the EAJA. Plaintiffs' attorneys admit that the number of hours requested constitutes an approximation of the hours actually expended. In Hensley v. Eckerhart, U.S. , 103 S. Ct. 1933, 1939 (1983), the Supreme Court noted

The party seeking an award of fees should submit evidence supporting the hours worked and rates claimed. Where the documentation of hours is inadequate, the district court may reduce the award accordingly.

I find that this is an appropriate case in which to reduce the award because of inadequate documentation. I have no doubt that plaintiffs' attorneys spent a great deal of time trying this case and prosecuting the appeals. Nonetheless, it appears that there was also a great deal of duplication, but it is impossible to gauge how much duplication because the attorneys did not keep contemporaneous time records. I, therefore, reduce the number of hours [14 ELR 20763] claimed by ten percent to 770.58 hours for the attorneys and 75.6 hours for the law clerks.

The government contends that any fee award should be limited to an award for claims on which plaintiffs prevailed. Specifically, the federal defendants argue that plaintiffs' attorneys should not receive any compensation for time spent litigating the FIFRA and FAA claims. To the extent that those issues were litigated against the federal defendants, plaintiffs are entitled to compensation. See Hensley, supra, U.S. at , 103 S. Ct. at 1904 ("Litigants in good faith may raise alternative legal grounds for a desired outcome, and the court's rejection of or failure to reach certain grounds is not a sufficient reason for reducing a fee."). Plaintiffs succeeded in obtaining (1) court orders modifying defendants' spray plan, (2) a ruling that defendants' compliance with FIFRA was judicially reviewable under the APA, (3) a ruling that the nationwide PEIS was seriously deficient, and (4) a statewide injunction against the spraying of carbaryl in populated areas in Oregon.

I do, however, reduce plaintiffs' request by twenty-five percent. I find that twenty-five percent fairly approximates the amount of time attributable to the claims against the state defendants. As plaintiffs noted in connection with their petition for fees under 42 U.S.C. § 1988, it would not be fair to assess only the federal defendants for plaintiffs' attorneys' fees. Plaintiffs' Petition for Attorneys' Fees at 7, Oregon Environmental Council v. Kunzman, No. 82-504-RE (D. Or. Dec. 27, 1983). I therefore reduce plaintiffs' requested hours to 577.94 hours of attorneys' time and 56.7 hours of law clerks' time.1 See Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1125 (9th Cir. 1981).

The final issue for determination is the proper hourly rate at which to compensate plaintiffs' attorneys. The EAJA provides that

[t]he amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that . . . (ii) attorney fees shall not be awarded in excess of $75 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.

28 U.S.C. § 2412(d)(2)(A).

Plaintiffs request $150 an hour. They argue that this case presents several special factors that justify an upward adjustment of the base hourly rate. I agree with plaintiffs that the limited availability of qualified attorneys familiar with NEPA and FIFRA justifies an upward adjustment. I also note that this case is over two years old and plaintiffs' attorneys have yet to be compensated for the time spent on this case. I conclude that $100 an hour is a reasonable hourly rate. The range of reasonable hourly rates is between $75.00 and $125.00.The award in this case places plaintiffs' attorneys at the high end of the scale. In find that $25 an hour is a reasonable rate for law clerks. I decline to increase that amount.

In conclusion, I award plaintiffs' attorneys $59,211.50 in attorneys' fees. This sum represents 577.94 hours at $100 an hour and 56.7 hours at $25 per hour. The Clerk shall assess costs and judgment on this amount shall enter accordingly.

1. Many of the requested hours were spent working on the appeals in this case. It is not clear from the Court of Appeals' Opinion whether I am to award attorneys' fees for time spent prosecuting the appeal. I conclude that I am authorized to award fees for hours spent on the appeal. In light of this determination, I have examined the appellate briefs "to evaluated the quality of [the] appellate presentation . . . [and to determine] the extent of briginal work devoted to the appeal." Suzuki v. Yuen, 678 F.2d 761, 763 (9th Cir. 1982). I have considered these factors in determining the amount of the award.

14 ELR 20762 | Environmental Law Reporter | copyright © 1984 | All rights reserved