Student Public Interest Research Group of New Jersey, Inc. v. Anchor Thread Co.

Nos. 88-5504 et al. (3d Cir. January 24, 1989)

The court holds that attorneys fees are appropriate in a Federal Water Pollution Control Act (FWPCA) citizen suit, and that the district court did not err in failing to reduce the lodestar amount in light of meager results. The court first holds that an attorneys fee award was appropriate under FWPCA § 505(d), since plaintiffs obtained a summary judgment award on liability. The parties eventually settled, and defendant agreed to pay $ 25,000 in civil penalties to the federal treasury. The court holds that the district court did not err in failing to reduce the lodestar to reflect the small amount of the penalty. Plaintiffs were the prevailing parties, and the penalty served as a deterrent to future violations. Moreover, the lower court did disallow time spent by plaintiffs on other citizen suits. The court holds that expert witness fees were appropriate. Although the case did not go to trial, the settlement occurred on the eve of trial and plaintiffs had to prepare for the planned trial. The court holds that a delay-in-payment adjustment was appropriate. The court holds that the district court did not abuse its discretion in reducing the lodestar to eliminate common time spent on this case and 26 other FWPCA citizen suit cases, in disallowing time to which defendant made no specific objection, and in reducing by one-third the time devoted to preparation of the fee applications.

[The district court's decisions appear at 19 ELR 20665 and 20670. The decision on the merits is published at 15 ELR 20964.]

Counsel for Plaintiffs
Karen Edgecombe, Bruce J. Terris
Terris, Edgecombe, Hecker & Wayne
1121 12th St. NW, Washington DC 20005
(202) 682-2100

Counsel for Defendants
Stephen W. Miller, Douglas J. Smillie
Clark, Ladner, Fortenbaugh & Young
1818 Market St., 32nd Fl., Philadelphia PA 19103
(215) 241-1800

[19 ELR 20671]

Gibbons, J.:

The defendant, Anchor Thread Company, appeals, and the plaintiffs, Student Public Interest Research Group of New Jersey, Inc. and Friends of the Earth, appeal, from orders of the district court awarding attorneys fees and expert witness fees to the plaintiffs pursuant to section 505(d) of the Federal Water Pollution Control Act. 33 U.S.C.A. § 1365(d) (West 1988 Supp.). That statute provides:

The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate.

An award is appropriate when the applicant for fees has achieved some degree of success on the merits. Ruckelshaus v. Sierra Club, 463 U.S. 680, 694 [13 ELR 20664] (1983).

Anchor initially appealed from a May 17, 1988 order which awarded fees and expenses totaling $ 84,239.23 plus a delay-in-payment adjustment in an amount to be determined (No. 88-5504). The plaintiffs moved to dismiss this appeal as interlocutory, but filed a protective cross-appeal (No. 88-5527). Thereafter, on September 12, 1988, the district court fixed the amount of the delay-in-payment adjustment, thereby rendering the judgment final. Thus the original appeal and cross-appeal were premature. Cape May Green, Inc. v. Warren, 698 F.2d 179 [13 ELR 20319] (1983). The plaintiffs appeal from the September 12, 1988 order (No. 88-5575). Thus we have appellate jurisdiction to consider both orders.

A. Anchor's Appeal

Anchor contended that the award of fees and expenses should be reversed outright because no award was appropriate. We disagree. The plaintiffs obtained a summary judgment on liability. That left open a monetary award to the United States. For a long period the parties were unable to agree, and thus the case was prepared for trial. On the eve of trial it was settled by a consent decree in which Anchor agreed to pay $ 25,000 to the United States. By then there was no need for injunctive relief because Anchor's plant had finally been connected to a municipal treatment plant and the violations of the Federal Water Pollution Control Act had ceased. An award of fees was in these circumstances appropriate.

Anchor contends, alternatively, that the district court erred in failing to reduce the lodestar amount of the plaintiffs' fee request in light of the meager result obtained. The plaintiffs were the prevailing parties on liability. The $ 25,000 recovery was agreed upon in light of Anchor's modest financial position. It served as a deterrent to future violations either by Anchor or by other potential polluters. The court did disallow time expended by plaintiffs on other cases. We find no abuse of discretion in the district court's ruling on the lodestar amount.

[19 ELR 20672]

Anchor contends that the court erred in awarding the plaintiffs expert witness fees. Anchor concedes that section 505(d) provides for such an award, but argues that it was not appropriate here because the case did not go to trial. It was settled, however, only on the eve of trial, and the plaintiffs were required to prepare for trial. We find no abuse of discretion in the award of expert witness fees.

Finally, Anchor contends that the court erred in awarding plaintiffs a delay in payment adjustment. The court awarded interest from the date of the consent decree at the rate set pursuant to 28 U.S.C. § 1961. That decree had reserved plaintiffs' right to make a fee application. Anchor contends there is no evidentiary basis for such an award, and thus that the court abused its discretion in making it. We find such a basis, and there is no abuse of discretion.

B. Plaintiffs' Appeal

The plaintiffs contend that the district court abused its discretion in reducing its lodestar amount by a pro rata share of the common time expended on this and 26 other cases. The district court found that the plaintiffs had not produced evidence from which it could be determined that the time in question related to this case. That finding is not clearly erroneous.

Plaintiffs also contend that the district court erred in disallowing time as to which Anchor made no specific objection. See Cunningham v. City of McKeesport, 753 F.2d 262, 267 (1985), vacated and remanded, 478 U.S. 1015, reinstated, 807 F.2d 49, 52-53 (3d Cir. 1986), cert. denied, 107 S. Ct. 2179 (1987). We hold that Anchor sufficiently put in issue the amount of time expended. Thus the court did not abuse its discretion in disallowing some disputed entries.

Plaintiffs also contend that the district court abused its discretion in reducing by one-third certain time devoted to the preparation of their fee applications. The district court explained its reasons for the disallowances. We find no abuse of discretion.

Since neither the contentions of Anchor nor the contentions of the plaintiffs are meritorious, the orders appealed from will be affirmed in all respects.