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28 ELR 21584 | Environmental Law Reporter | copyright © 1998 | All rights reserved United States v. City of San DiegoNo. Civ. 88-1101-B POR (S.D. Cal. June 30, 1998)The court awards an environmental group $ 781,306 in attorneys fees pursuant to Federal Water Pollution Control Act (FWPCA) § 505(d). The group intervened to block the entry of a proposed consent decree in an FWPCA enforcement proceeding brought by the United States and a state against a city for chronic FWPCA violations. The court first holds that the group is a prevailing party. The group succeeded on significant issues and achieved the primary objective of its intervention — the rejection of the consent decree. The court holds, however, that it is only appropriate to compensate the group for work on the issues on which it prevailed, rather than compensate the group with a blanket fee award. The court then holds that the group is entitled to fees for its work on physical-chemical alternative sewage treatment methods. The physical-chemical treatment contributed to the overall improvement of the plant and its compliance with waiver permit standards. The court next holds that the group is not entitled to more fees for its work on water reclamation and reuse issues. The group already was awarded fees for these issues and has not worked on the issues since the fee award. The group is also not entitled to fees for its work in disinfection and ocean compliance. The court rejected the group's suggestion for disinfection as a way of complying with California's ocean plan and implemented the city's outfall extension proposal. The group, however, is entitled to fees for its work on water conservation issues. The court next awarded the group fees for lobbying for the Oil Pollution Reduction Act. The lobbying efforts were necessitated by the litigation and were essential to reaching a viable settlement. The court also awards the group fees for participating in EPA waiver permit proceedings that were inextricably tied to resolving the case, and participation in the proceedings was necessary to advocate the prevailing parties' litigation-specific interests. The court further holds that the group will be compensated for work on fee petitions and appeals to the extent that the group prevailed. The court then holds that as to the issues on which the group will be awarded fees, the hourly rate and number of hours claimed by the group are reasonable. The group, however, is not entitled to a fee enhancement because it failed to show why the rate used in calculating the lodestar does not reflect a reasonable fee. The court next holds that the group shall be awarded $ 781,306. In allocating the liability, the court holds that the city, the state, and the United States shall be jointly and severally liable for 25 percent of the fee award. The United States shall not be liable for more than 12.5 percent of the total fee award, and the city shall be solely liable for 75 percent of the fee award. Counsel for Plaintiff Counsel for Defendants Brewster, J. Plaintiff-intervenor Sierra Club filed a motion for attorney's fees in this action pursuant to 33 U.S.C. § 1365(d) on June 20, 1997. The United States Environmental Protection Agency (the United States or EPA), the State of California (State), and the City of San Diego (City) opposed the motion. This matter came on for hearing on April 24, 1998. Upon due consideration of the moving and responding papers and the arguments of counsel, the Court hereby GRANTS Sierra Club's motion for attorney's fees. During the 1980s, the City of San Diego was a chronic violator of the Federal Water Pollution Control Act (Clean Water Act or CWA), 33 U.S.C. §§ 1251-1387. The City's violations ranged from wastewater overflows along City sewer lines to the City's failure to treat raw sewage to secondary treatment standards before discharging it into the Pacific Ocean. In 1988, the United States and the State of California1 (State) instituted a CWA civil enforcement action against the City. By 1989, the parties were in the process of negotiating a proposed Consent Decree that would have required the City to build a number of new sewage treatment and water reclamation facilities. The new facilities purportedly would have increased the City's wastewater treatment and disposal system to adequate capacity and enabled the City to implement secondary treatment standards. As the negotiations gained momentum, the Sierra Club, which had been monitoring the progress of the case, sought to intervene as a plaintiff and block entry of the proposed Consent Decree. The Sierra Club argued that the agreement being reached between the parties violated the public interest for the following reasons: (1) Sierra Club believed that secondary treatment standards could be attained at a lower cost and with less environmental impact by using experimental "physical-chemical" treatment methods at the existing Point Loma Wastewater Treatment Facility (the Point Loma plant), the City's main sewage treatment facility, rather than building new treatment facilities as required by the Consent Decree; (2) The Consent Decree contained no water conservation measures, which Sierra Club believed would obviate the need for new wastewater treatment facilities; (3) The Consent Decree required seven new water reclamation facilities but did not provide for the distribution and re-use of the reclaimed water; and (4) The Consent Decree required effluent to be treated with chlorine before being discharged into the ocean. Sierra Club's motion to intervene was granted on September 20, 1989. After extensive evidentiary hearings, the Court deferred approval of the Consent Decree on June 18, 1991. On September 11, 1991, Sierra Club filed a motion for interim attorney's fees pursuant to 33 U.S.C. § 1365(d). The Court granted this motion in part on February 6, 1992, finding that § 1365(d) allowed intervening plaintiffs in CWA actions to receive attorney's fees. To determine an appropriate fee award, the Court placed Sierra Club's work on the case in three categories. The first category of work, for which the Court awarded fees, involved water reclamation issues. The second category of work, for which the Court held that a fee request was premature, involved the experimental use of physical-chemical treatment methods at the Point Loma plant. The Court found the test results too inconclusive at that time to justify a fee award. Finally, the Court declined to award fees for work on the penalty phase of the litigation because it found that Sierra Club had not made a beneficial contribution to that portion of the case. The Court awarded Sierra Club an amount equal to 15% of its total reasonable fees and costs accrued as of June 18, 1991. The United States, the State of California, and the City of San Diego were held jointly and severally liable for 67 2/3% of the interim fee award, and the City of San Diego was solely liable for 33 1/3% [sic]. The parties eventually stipulated to a $ 375,406.24 lodestar, of which Sierra Club received 15%, or $ 56,310.93. The award was made without prejudice to future fee motions. The Court certified the interim award of attorney's fees for interlocutory appeal pursuant to 28 U.S.C. § 1292(b). The United States and the City of San Diego appealed on the ground that as an intervenor, Sierra Club could not receive fees. Sierra Club cross-appealed the amount of the award. The Ninth Circuit, without reaching the merits of this Court's decision, held that it lacked jurisdiction over the appeals under either 28 U.S.C. §§ 1291 or 1292(b), and the appeals were dismissed without prejudice. After deferral of the Consent Decree, the Sierra Club devoted extensive efforts to developing alternate resolutions to this matter. It researched water reclamation and re-use possibilities and the effects of water conservation on wastewater volumes at the Point Loma plant. It also monitored the pilot testing of physical-chemical treatment methods at the Point Loma plant. In September 1993, Sierra Club requested that the Court hold a final hearing on the Consent Decree and that the Consent Decree be disapproved. Although the United States and the State continued to favor approval of the Consent Decree, the City changed positions and opposed the decree. The parties participated in extensive discovery, followed by thirteen days of evidentiary hearings. On March 31, 1994, the Court rejected the Consent Decree. Subsequently, the Court issued an interim order on August 26, 1994, to address all remedial phase issues in the case pending final judgment. That order provided, among other things, construction dates for a number of projects, including the North City Water Reclamation Plant (North City plant). However, the order did not require completion of a distribution system for reclaimed water by the start-up date of the North City plant. Without distribution pipelines, Sierra Club asserted, the reclaimed water would be wastefully discharged into the ocean. Sierra Club therefore moved to amend the interim order to provide for "distribution pipelines adequate to market not less than 9,000 acre feet per year." The Court did amend the interim order, but it did not adopt the Sierra Club's proposed amendment. Instead, the Court adopted the City's suggestion that the amended order incorporate a map setting out a backbone distribution pipeline system and specify completion dates for each segment of the pipeline project. It did not require a specific distribution pipeline capacity. One of the most significant issues remaining in the case after rejection of the Consent Decree was whether the City should be required to treat effluent to secondary treatment standards at the Point Loma plant before discharging it into the ocean. Despite substantial improvements at the Point Loma plant, due in part to the use of physical-chemical treatment methods, secondary treatment standards could not be reached. Before 1994, the EPA was allowed to waive one or more secondary treatment standards under § 301(h) of the CWA if no environmental injury would result. The parties and the Court were convinced that under the circumstances, a § 301(h) waiver would be appropriate.2 Unfortunately, the City's prior § 301(h) request had been withdrawn years before, and by 1995, the § 301(h) waiver provision had expired.3 Without a waiver, the City would have been forced to build an expensive and unnecessary new sewage treatment plant to comply with the CWA. To avoid this result, the parties drafted, lobbied for, and obtained passage of a bill by Congress, the Ocean Pollution Reduction Act (OPRA), which allowed the City to apply for a § 301(h) waiver. The City applied for the waiver and, with the Sierra Club's help, established in waiver permit hearings before the EPA that the Point Loma plant had achieved an 85% suspended solids removal rate, and that due to this, the City's effluent discharges did not injure the ocean environment. The City obtained a § 301(h) waiver on November 9, 1995. The resolution of the secondary treatment issue removed a major obstacle to settling the case. The parties negotiated a complex settlement, and the final Stipulated Judgment was entered on June 6, 1997. Sierra Club now moves for a final award of attorney's fees. It seeks $ 866,628.83, which represents all work done on the case, less the interim fee award. It also requests a 25% enhancement. Under the CWA, a district court may award "costs of litigation . . . to any prevailing or substantially prevailing party whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d). The threshold determination is whether the moving party is a "prevailing party." Earth Island Inst., Inc. v. Southern Cal. Edison Co., 838 F. Supp. 458, 463 [24 ELR 20639] (S.D. Cal. 1993) (citing Hensley v. Eckerhart, 461 U.S. 424, 433-37, 103 S. Ct. 1933, 76 L. Ed. 2d 40 (1983)). A prevailing party "must have succeeded on 'any significant issue in the litigation which achieves some of the benefit'" sought. Earth Island, 838 F. Supp. at 464 (quoting Hensley, 461 U.S. at 433). Second, the hours claimed and the hourly rate charged must be reasonable. See Hensley, 461 U.S. at 434. Third, even if the party seeking fees has prevailed, the court must consider the results obtained by the moving party in light of the amount of fees sought and, if appropriate, adjust the amount of the award. See id. "This factor is particularly crucial where a plaintiff is deemed 'prevailing' even though he succeeded on only some of his claims for relief." Id. However, when a court adjusts a fee award, it must provide a "concise but clear explanation" for its decision. Id. at 437. Finally, an attorney's fee applicant seeking an enhancement of the lodestar amount must show that the enhancement is "necessary to the determination of a reasonable fee." Blum v. Stenson, 465 U.S. 886, 898, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984). B. Sierra Club Is Not Entitled to a Blanket Fee Award Sierra Club argues that because the Consent Decree was rejected, it has prevailed in the case and should receive attorney's fees for all of its work. The Sierra Club objects to an issue-by-issue consideration of its fee award. It cites Hensley for the proposition that [w]here a plaintiff has obtained excellent results, his attorney should recover a fully compensatory fee. Normally this will encompass all hours reasonably expended on the litigation. . . . In these circumstances the fee award should not be reduced simply because the plaintiff failed to prevail on every contention raised in the lawsuit. The Court agrees that Sierra Club is a "prevailing party" because it succeeded on significant issues and achieved the primary objective of its intervention: the rejection of the Consent Decree. However, this Court must compare the level of success obtained with the amount of fees sought to set a reasonable fee award. Failure to do so would be an abuse of discretion. See Farrar v. Hobby, 506 U.S. 103, 114, 113 S. Ct. 566, 121 L. Ed. 2d 494 (1992). The Hensley Court discussed the process of awarding attorney's fees in complex civil rights litigation involving numerous challenges to institutional practices or conditions. This type of litigation is lengthy and demands many hours of lawyers' services. Although the plaintiff often may succeed in identifying some unlawful practices or conditions, the range of possible success is vast. That the plaintiff is a "prevailing party" therefore may say little about whether the expenditure of counsel's time was reasonable in relation to the success achieved. Hensley, 461 U.S. at 436. In this case, the parties identified and resolved numerous problems, expending thousands of attorney hours. All parties contributed to the end result, and all prevailed in some way. On certain issues, Sierra Club's input was not useful and sometimes [28 ELR 21586] counterproductive. Thus, the Court finds it appropriate only to compensate Sierra Club for work on issues on which it prevailed. B. Issue-by-Issue Analysis [sic] 1. Physical-Chemical Treatment Alternatives at the Point Loma Plant In this litigation, the Sierra Club introduced the possibility of using physical-chemical alternative sewage treatment methods, which were pilot-tested at the Point Loma plant. Currently, the Point Loma plant removes 85% of suspended solids from the sewage treated there, enabling the City to meet the requirements of its EPA waiver permit. The United States and the City claim that Sierra Club should not receive attorney's fees for work on physical-chemical treatment because these methods did not enable the Point Loma plant to meet secondary treatment standards. They further argue that the performance levels required by the plant's waiver permit were achieved independently of physical-chemical treatment. It would be unfair to discount physical-chemical treatment because it was not solely responsible for improved treatment standards or because it did not bring about secondary treatment standards that were unnecessary for waiver permit compliance. The Court finds that physical-chemical treatment contributed to the overall improvement of the Point Loma plant and its compliance with waiver permit standards. Thus, the Sierra Club's advocacy on this issue was successful, and a fee award for this work is appropriate.4 2. Water Reclamation and Re-Use The 1992 interim fee award compensated Sierra Club for all pre-June 18, 1991, work on water reclamation and re-use issues, to the extent that the Court found that compensation was appropriate. Sierra Club does not claim to have worked on water reclamation and re-use issues after 1991. Thus, no further fees are necessary for work on these issues. 3. Disinfection and Ocean Plan Compliance The rejected Consent Decree would have required the City to disinfect all effluent with chlorine to comply with California's Ocean Plan. Sierra Club opposed chlorine disinfection and advocated an ozonization process instead. The City argued that ozonization was prohibitively expensive. It proposed extending the ocean outfall pipe through which treated effluent was discharged into deeper water, thus satisfying the Ocean Plan and eliminating the need for disinfection. The Court allowed the outfall extension and found chemical disinfection unnecessary both in the short-term and after outfall completion. Sierra Club claims that it prevailed on the disinfection issue because the Court eliminated the use of chlorine. The City claims that Sierra Club did not prevail because the ocean outfall extension was approved, and disinfection as a general requirement was eliminated. The Court finds that Sierra Club did not prevail on this issue because it focused on ozonization disinfection as a way of complying with the Ocean Plan, an approach that the Court rejected in favor of the City's outfall extension proposal. Thus, awarding fees for work on disinfection and Ocean Plan compliance issues would be inappropriate. One of the most important components of the settlement agreement in this case was a successful water conservation program. The Court finds that Sierra Club's work on this issue contributed substantially to the successful outcome of this portion of the case. Sierra Club is therefore entitled to attorney's fees for its work on water conservation issues. 5. The 1995 Motion to Amend the Court's Interim Order Sierra Club claims success on its 1995 motion to amend the Court's August 1994 interim order. As the Court did not adopt the Sierra Club's requested amendment to the interim order, the Court finds that the Sierra Club did not prevail on its motion to amend the order, and a fee award for this work would be inappropriate. Sierra Club seeks compensation for its lobbying work on the OPRA, the legislation that allowed the City to apply for a waiver of certain secondary treatment standards under § 301(h) of the CWA. The other parties contend that lobbying work is not compensable as "costs of litigation" under the CWA. In Davis v. City and County of San Francisco, 976 F.2d 1536 (9th Cir. 1992), the Ninth Circuit affirmed an award of attorney's fees under 42 U.S.C. § 1988 that included lobbying work connected with a Title VII class action. The parties in that case reached a consent decree that eliminated certain allegedly discriminatory hiring and promotion policies for firefighters. Before the parties could seek entry of the consent decree, it was necessary for the San Francisco Board of Supervisors to approve it. Consequently, attorneys for the plaintiff class lobbied the Board of Supervisors for approval. The Court of Appeals upheld the district court's fee award for the lobbying work, stating, [P]revailing civil rights counsel are entitled to compensation for the same tasks as a private attorney. Where the giving of press conferences and performance of other lobbying and public relations work is directly and intimately related to the successful representation of a client, private attorneys do such work and bill their clients. Prevailing civil rights plaintiffs may do the same. Davis, 976 F.2d at 1545. The Sierra Club argues, and the Court agrees, that Davis authorizes awarding attorney's fees for lobbying done to protect interests that are intimately related to the litigation. The government parties contend that Forest Conservation Council v. Devlin, 994 F.2d 709 [23 ELR 20995] (9th Cir. 1993), held that lobbying is not compensable as a cost of litigation. Forest Conservation Council was a lawsuit filed by a group of plaintiffs seeking to force the National Forest Service (NFS) to withdraw a timber sale. Prior to filing their lawsuit, plaintiffs lobbied NFS to withdraw the sale. Hours after the complaint was filed, NFS withdrew the sale. The plaintiffs sought attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A). Contrary to the government parties' assertion, the Court of Appeals did not hold that district courts cannot award attorney's fees for lobbying work. The issue was not whether lobbying was compensable, but rather, whether attorney's fees could be awarded at all when the resolution of the controversy was traced solely to the plaintiffs' prelitigation lobbying efforts and not to the lawsuit itself. See id. at 712. In such a case, the court held, the plaintiff has not prevailed in the litigation and is therefore not entitled to fees. See id. at 713. The government parties also cite Portland Audubon Society v. Lujan, 865 F. Supp. 1464 (D. Or. 1994). In that case, the plaintiffs sought attorney's fees under the EAJA for lobbying against legislation that related to some of the same issues as the litigation. The district court cited Forest Conservation Council for the proposition that "[t]he EAJA does not serve to compensate public interest groups for their lobbying efforts, no matter how successful those efforts may be." Audubon Society, 865 F. Supp. at 1475 (quoting Forest Conservation Council, 994 F.2d at 713). In this case, the government parties take this language out of context. Neither Forest Conservation Counsel nor Audubon Society placed a blanket prohibition on awarding attorney's fees for lobbying. Rather, both cases concluded that public interest organizations should not be compensated for lobbying that would have been done irrespective of any pending litigation. The instant case is easily distinguishable by its similarity to Davis. In Davis, the lobbying efforts at issue were necessitated by the litigation and were essential to reaching a viable settlement. Here, but for this litigation, Sierra Club would not have lobbied for the OPRA. Sierra Club's lobbying was done for the narrow purpose of solving the EPA waiver problem, which might otherwise have prevented the settlement. Therefore, the Court finds that the Sierra Club is entitled to compensation for its OPRA lobbying work. The Court notes and rejects the City's argument that it should not be liable for the Sierra Club's attorney's fees for lobbying work because the City expended its own resources to lobby for the OPRA. It is not likely that Sierra Club's willingness to put its weight behind this legislation was inconsequential to its passage. When a large environmental organization supports a law that would relax CWA compliance standards for an entire metropolitan area, lawmakers are likely to notice. [28 ELR 21587] Furthermore, lobbyists operate on the principle that even with the most sympathetic legislator, they have a finite number of "bargaining chips." Here, Sierra Club donated some of its "bargaining chips" to the City. That the City also lobbied for the OPRA is irrelevant. The City, as the defendant in this action, was responsible for complying with the CWA, and Sierra Club helped it to do this by lobbying for legislation that was necessary for it to achieve compliance in an efficient and environmentally sound manner. Therefore, it is fair for the City to compensate Sierra Club for its lobbying work. Sierra Club seeks fees for participating in administrative proceedings before the EPA and the Regional Water Quality Control Board. The other parties object that these services are not compensable as costs of litigation. The Court will award attorney's fees for participation in the EPA waiver permit proceedings, but not for participation in Regional Water Quality Control Board proceedings. Sierra Club relies on Pennsylvania v. Delaware Valley Citizens' Council, 478 U.S. 546, 106 S. Ct. 3088, 92 L. Ed. 2d 439 [16 ELR 20801] (1986), which involved an award of attorney's fees under the Clean Air Act. That case began as an action to force the State of Pennsylvania to implement a vehicle emission inspection and maintenance program (I/M program). A consent decree was entered, which the plaintiffs spent years monitoring and enforcing. The district court eventually awarded attorney's fees to the plaintiffs, and the Third Circuit affirmed. The state objected to the awarding of fees for participation in extrajudicial proceedings. Specifically, the plaintiffs submitted comments in state rulemaking proceedings required by the consent decree, and it participated in EPA hearings when the state sought approval of an I/M program that did not comply with the consent decree. The Supreme Court found that these services were compensable because "participation in these administrative proceedings was crucial to the vindication of Delaware Valley's rights under the consent decree," and that therefore "compensation for these activities was entirely proper and well within the 'zone of discretion' afforded the District Court." Delaware Valley, 478 U.S. at 561. Sierra Club also cites Sullivan v. Hudson, 490 U.S. 877, 109 S. Ct. 2248, 104 L. Ed. 2d 941 (1988), for the proposition that "where administrative proceedings are intimately tied to the resolution of the judicial action and necessary to the attainment of the results Congress sought to promote by providing for fees, they should be considered part and parcel of the action for which fees may be awarded." Id. at 888. Hudson was a Social Security case in which the Supreme Court upheld an award of attorney's fees under the EAJA for representation in administrative proceedings that were mandated by a court order. The Hudson Court applied Delaware Valley, holding that awarding fees for administrative work was proper where the administrative proceedings were necessary to protect a prevailing party's rights with respect to the litigation. See Hudson, 478 U.S. at 889. The United States argues that Delaware Valley and Hudson are distinguishable from the instant case because the administrative proceedings in those cases were required by court orders. However, this case shares with Delaware Valley and Hudson the key fact that participation in administrative hearings was necessary to protect the moving party's rights in the litigation. See Delaware Valley, 478 U.S. at 558. Sierra Club participated in the EPA waiver hearings to advocate interests that were specific to this litigation. Sierra Club's participation was necessitated by its strategic choice to help the City obtain a § 301(h) waiver and create a workable settlement. Sierra Club's interests in this litigation depended on the outcome of the waiver application process. No attorney representing a private client would allow his or her advocacy to end at the courthouse door in such a situation. In this case, as in Delaware Valley and Hudson, the outcome of the administrative proceedings was inextricably tied to the resolution of the litigation, and participation in those proceedings was necessary to advocate the prevailing parties' litigation-specific interests. Therefore, Sierra Club should receive attorney's fees for its participation in the EPA waiver permit proceedings. The Sierra Club further seeks attorney's fees for its participation in Regional Water Quality Control Board proceedings during the pendency of this litigation. The justification for allowing fees for participation in EPA waiver permit proceedings does not extend to participation in Water Quality Control Board proceedings. Whereas participation in the EPA proceedings was narrowly tailored to the purpose of achieving a specific litigation goal, the Sierra Club's participation in Water Quality Control Board proceedings was for more general purposes not essential to the outcome of this case. Therefore, the Court will not award attorney's fees for the Sierra Club's participation in those state agency proceedings. Sierra Club's billing records reflect time spent briefing the application of state water law to the instant case (the "water brief") in 1992 and 1993. In its March 31, 1994, order rejecting the Consent Decree, the Court specifically declined to rule on the issues raised in the water brief. Therefore, the Court will not award fees for work on the water brief. Sierra Club seeks a fee award that includes its work on (1) the 1991 interim fee petition, (2) the appeal of the Court's interim fee award, and (3) the present fee petition. Time spent litigating fee petitions is compensable. See Clark v. City of Los Angeles, 803 F.2d 987, 992 (9th Cir. 1986). When a court awards fees, compensation for time spent litigating the fee petitions themselves "must be included in calculating a reasonable fee because uncompensated time spent on petitioning for a fee automatically diminishes the value of the fee eventually received." Anderson v. Director, Office of Workers Comp. Programs, 91 F.3d 1322, 1325 (9th Cir. 1996) (emphasis added). Attorney's fees for time spent preparing fee petitions may be paid to attorneys who have been hired by the moving party exclusively to serve as counsel for the fee petitions so long as the hours claimed are not duplicative and the amount sought is reasonable. See Davis, 976 F.2d at 1544. In this case, Sierra Club did not receive fees for time spent litigating the interim fee petition before this Court. Because the Court did award some interim fees to Sierra Club, it now awards fees for Sierra Club's interim fee-related work. However, the Court finds that an award of fees for all work on the interim fee petition would be excessive in light of the fact that Sierra Club received only 15% of the fees that it sought in its interim fee motion. "Fees for fee litigation are excludable, not only when the applicant has had 'extremely limited success on merits fees,' . . . but in all cases 'to the extent that the applicant ultimately fails to prevail in such litigation.'" Thompson v. Gomez, 45 F.3d 1365, 1368 (9th Cir. 1995) (emphasis in original; citation omitted). Therefore, the Court will compensate Sierra Club for its work on the interim fee petition in an amount equal to 15% of the fees attributable to interim fee work. Fees for the appeals in this case are not appropriate under the circumstances. "Fees may be awarded for work performed on successful appeals of the district court's award, but not for unsuccessful ones." Thompson, 45 F.3d at 1368-69 (9th Cir. 1995). Here, both the government parties' and Sierra Club's appeals were dismissed on procedural grounds, and the merits of the Court's fee award were never reviewed. Sierra Club did not succeed in either defending the Court's ability to award it fees or increasing the amount of the Court's award. In Friend v. Koledzieczak, 72 F.3d 1386 (9th Cir. 1995), the Ninth Circuit compensated a prevailing plaintiff fortime spent defending a fee award on appeal, even though the Supreme Court reversed and remanded the award, because the district court reinstated the fee on remand. The results of the appeals in this case, however, were not temporary setbacks along the road to an ultimately successful interim fee petition. See Friend, 72 F.3d at 1391. Rather, the issues attempted to be appealed were deemed non-appealable. The only position that the Sierra Club ever advocated before the Ninth Circuit was that the interim fee award was appealable, and it lost. Because Sierra Club did not succeed on the appeal, it is not entitled to fees for its appellate work. The Court will award the Sierra Club attorney's fees for all of its work on the present fee petition. C. Reasonableness of Fees One of the requirements for an award of attorney's fees is that the fees requested be reasonable. This is normally accomplished through the "lodestar" method, which multiplies the reasonable number of hours spent on the litigation by a reasonable hourly rate. Gates v. Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992). The Court finds that as to the issues on which it elects to award fees, the hourly rate and number of hours claimed by Sierra Club are reasonable. D. Sierra Club Is Not Entitled to an Enhancement In addition to its lodestar, Sierra Club claims that it is entitled to an enhancement of 25% of its fees for work done by attorneys Simmons, Benjamin and Wharton to account for the "exceptional results" that they obtained. The government parties contend that such an enhancement would be inappropriate. The Court agrees. In Blum v. Stenson, 465 U.S. 886, 104 S. Ct. 1541, 79 L. Ed. 2d 891 (1984), the Supreme Court, noting that the "lodestar" amount is presumed to be fully compensatory, held that an enhancement may be justified only "in the rare case where the fee applicant offers specific evidence to show that the quality of service rendered was superior to that one reasonably should expect in light of the hourly rates charged and that the success was 'exceptional.'" Id. at 899. A fee enhancement is an abuse of discretion where the moving party fails to show why the complexity of the issues, the riskiness of the suit, the quality of representation, and the benefits to the client are not reflected in either the number of hours claimed or the hourly rate charged. Id. at 898-902. The Ninth Circuit has subsequently held that "[t]o overcome the strong presumption that the basic fee is reasonable, the applicant must satisfy stringent requirements. Foremost, the applicant must show the requested enhancement is 'necessary to the determination of a reasonable fee.'" Stewart v. Gates, 987 F.2d 1450, 1453 (9th Cir. 1993) (emphasis in original; citation omitted). Here, Sierra Club bases its request for a multiplier on "the extraordinary value of the results in comparison to its very modest lodestar, a factor that is not subsumed within the lodestar." Sierra Club claims that the lodestar "is based on rates that would be charged by attorneys with far less skill and experience, and therefore does not reflect that performance." (emphasis in original). Curiously, Sierra Club does not say why it used a rate that it believes is inadequate to calculate its lodestar. As Sierra Club has not carried its burden of showing why the rate used in calculating the lodestar does not reflect a reasonable fee, the Court will not grant a fee enhancement. At the hearing on this matter, it was determined that after deducting amounts attributable to certain work for which the Court declines to award fees, an appropriate baseline for the Sierra Club's fee award was $ 803,400. After giving the parties an opportunity to review the Sierra Club's billing records further and confer among themselves, the Court has determined that an additional $ 22,094 can be deducted to reflect other work that the Court has deemed non-compensable. Therefore, judgment shall be entered for the Sierra Club in the amount of $ 781,306. Each party argues for different reasons that it should not have to pay Sierra Club's attorney's fees. The Court holds that each party shall share liability for Sierra Club's attorney's fees according to the following formula: (1) the City, the State, and the United States shall be jointly and severally liable for 25% of the Sierra Club's attorney's fee award; (2) the United States shall not be liable for more than 12.5% of the total fee award; and (3) the City shall be solely liable for 75% of the Sierra Club's attorney's fee award. The City argues that it should not be held liable in this action because even if the Sierra Club is a prevailing party, it did not prevail against the City. In Idaho Conservation League, Inc. v. Russell, 946 F.2d 717 [22 ELR 20278] (9th Cir. 1991), the plaintiffs sued the EPA for its failure to promulgate water quality regulations on behalf of the State of Idaho. The suit settled when Idaho agreed to promulgate the necessary standards, and plaintiff sought attorney's fees from the EPA pursuant to 33 U.S.C. § 1365(d). The Ninth Circuit reversed the district court's award, holding that although plaintiff was a "prevailing party," it had not prevailed against the EPA because it did not obtain any relief from the EPA. Id. at 721. Rather, it had obtained its relief from an outside party. Here, as to some issues, the settlement reflects positions on which Sierra Club and the City were aligned. This does not affect City's liability for Sierra Club's attorney's fees. Idaho Conservation League stands for the proposition that a prevailing plaintiff may not collect attorney's fees from a party from whom no relief was obtained. Here, Sierra Club did obtain relief from the City because it was required to comply with the CWA. That the City voluntarily agreed to or even advocated certain points in the settlement does not matter. The State of California submits that the City has agreed to indemnify it for any judgments rendered against it in this case. However, the agreement between the City and the State is not binding on this Court and is irrelevant to the instant motion. The City and State can work out their respective liability under their agreement without the input of this Court. The United States maintains, as it did with regard to the 1991 interim fee petition, that district courts are not authorized to award attorney's fees to intervenors under the CWA. The Court has already decided this issue, and that determination is the law of the case. Under the law of the case doctrine, an issue previously decided by the same court in the same case may only be reconsidered (1) where the first decision was clearly erroneous and would result in manifest injustice; (2) where there has been an intervening change in the controlling law; or (3) where evidence in a subsequent proceeding is substantially different. See United States v. Garcia, 77 F.3d 274, 276 (9th Cir. 1996). None of these criteria apply here. The Court stands by its previous determination that it is authorized by the CWA to award attorney's fees to Sierra Club to the extent that it finds the Sierra Club to be a prevailing party in this action. The United States further notes that it did not oppose the Sierra Club with regard to several issues in this case that form the basis of the instant attorney's fee award, specifically (1) the OPRA lobbying, (2) the EPA permitting proceedings, and (3) the 1993 settlement negotiations between Sierra Club and the City. Thus, it argues, it should not be liable for Sierra Club's attorney's fees for work on these issues. As to the broad issue of whether the Consent Decree should have been entered, the Sierra Club clearly prevailed against the United States; therefore, the Court may properly hold the United States liable for the Sierra Club's attorney's fees. However, the Court recognizes that the war over the Consent Decree was composed of many battles, and the United States did not fight in every skirmish. Thus, the United States' lack of opposition to the Sierra Club regarding some issues in this case is reflected by the fact that the Court has only held the United States liable for a percentage of the Sierra Club's attorney's fee award. G. Sierra Club Is Not Entitled to Recovery Under Equitable Doctrines Sierra Club contends that if attorney's fees are not appropriate under the CWA, the Court should award them under the equitable common benefit doctrine. This issue is rendered moot by the Court's decision to award attorney's fees under the CWA. Furthermore, the common benefit doctrine has no application where, as here, the alleged beneficiaries are the general citizenry of a county. See Southeast Legal Defense Group v. Adams, 657 F.2d 1118, 1123 (9th Cir. 1981); Stevens v. Municipal Court, 603 F.2d 111, 113 (9th Cir. 1979). The Sierra Club's motion for attorney's fees is granted. Sierra Club shall receive an award of $ 781,306. The City shall be solely liable for 75% of this amount. The United States, the State, and the City shall be jointly and severally liable for 25% of this amount, but the United States shall not be required to pay more than 12.5% of the total ($ 781,306) award. 1. The State of California later re-aligned itself with the City as a defendant in March 1994. 2. During this time, the National Science Foundation was studying the science of the CWA regulations. It issued a report which was quite favorable to the Sierra Club's and the City's position that San Diego's sewage treatment practices, improved through the use of physical-chemical methods, caused no damage to the environment. 3. The City initially received a temporary § 301(h) waiver in 1981. When the City amended its application to allow larger treatment volumes at the Point Loma plant, the waiver was temporarily denied. In 1987, the City withdrew its § 301(h) waiver application and commenced planning to comply fully with the CWA. Early in the planning process, in 1988, the United States and the State of California filed the instant lawsuit against the City. The City later relied on the proposed Consent Decree as a way of achieving CWA compliance. 4. The City, State, and the United States assert that a fee award for physical-chemical treatment work prior to June 18, 1991 would be inappropriate because the interim fee award was a final decision as to all fees incurred prior to that date. However, the order does not preclude the possibility that fees could be awarded for work done before that date. 28 ELR 21584 | Environmental Law Reporter | copyright © 1998 | All rights reserved |