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awarding expert fees where "[t]here is no record of the compensation paid to any expert witness by the United States in this litigation"
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Civil No. 00-755-HU.
March 7, 2005
Brett E. Brownscombe, HELLS CANYON PRESERVATION COUNCIL, LaGrande, OR, Julia A. Olson, WILD EARTH ADVOCATES, Eugene, OR, Peter M.K. Frost, WESTERN ENVIRONMENTAL LAW CENTER Eugene, OR, Attorneys for Plaintiff.
Stephen J. Odell, UNITED STATES ATTORNEY'S OFFICE, Portland, OR, Val J. Black, U.S. DEPARTMENT OF AGRICULTURE Office of General Counsel, Portland, OR, Attorneys for Defendants.
Russell C. Brooks, PACIFIC LEGAL FOUNDATION, Bellevue, WA, Scott W. Horngren, HAGLUND KIRTLEY KELLEY HORNGREN, LLP Portland, OR, Attorneys for Intervenor Defendant Wallowa County.
ORDER
The Magistrate Judge filed Amended Findings and Recommendation on December 9, 2004 in the above entitled case. The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Fed.R.Civ.P. 72(b). When either party objects to any portion of a magistrate judge's Findings and Recommendation, the district court must make a de novo determination of that portion of the magistrate judge's report. See 28 U.S.C. § 636(b)(1);McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656 F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982).
Hells Canyon Preservation Council ("HCPC") timely filed objections on December 24, 2004. I have, therefore, given de novo review of the Magistrate Judge's rulings.
I find error in the Amended Findings and Recommendation. Accordingly, I MODIFY the Amended Findings and Recommendation dated December 9, 2004. Specifically, I modify the findings concerning the issues of pre- pro hac vice attorneys's fees, HCPC's fee award for attorney Brett Brownscombe's work, and HCPC's entitlement to litigation costs and expenses. I adopt all other findings in their entirety.
The Magistrate Judge recommended awarding HCPC $116,707.28 in attorneys' fees and $2,906.90 in costs under the Equal Access to Justice Act ("EAJA"). 28 U.S.C. § 2412. HCPC objects to the Amended Findings and Recommendation ("Amended FR") on five grounds: 1) attorney Julia Olson is entitled to an enhanced fee rate; 2) HCPC is entitled to fees for work done by Olson before her pro hac vice admission to this court; 3) the Magistrate Judge erred by disallowing hours for "block billing"; 4) the Amended FR miscalculated the compensable hours worked by HCPC attorney Brett Brownscombe; and 5) HCPC is entitled to recover additional costs and expenses. HCPC also seeks attorneys' fees for litigating the fee motion.
1. Enhanced Fee Rate Under Equal Access to Justice Act
HCPC argues it is entitled to enhanced fees for attorney Julia Olson. I adopt the Amended FR on this issue because HCPC did not establish that Olson's unique litigation skills were necessary to the litigation and unavailable elsewhere at the EAJA statutory rate.
The EAJA authorizes enhanced fee awards where 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 proceeding involved, justifies a higher fee." 28 U.S.C. § 2412 (d)(2)(A)(ii). Courts in the Ninth Circuit award enhanced fees when: 1) the attorney possesses distinctive knowledge and skills developed through a practice specialty; 2) those distinctive skills are needed in the litigation; and 3) those skills are unavailable elsewhere at the EAJA statutory rate. U.S. v. Real Property Known as 22249 Dolorosa Street, Woodland Hills, Cal., 190 F.3d 977, 984 (9th Cir. 1999). In Dolorosa Street, the plaintiff's attorney was denied fees at an enhanced rate because the claimant failed to demonstrate that the attorney's specialized skills were a necessary component to succeeding in the litigation. Id. at 984-85.
HCPC did not meet its burden under Dolorosa Street because the record fails to establish that Olson's specialized environmental skills, as opposed to her general litigation skills, were necessary and unavailable elsewhere at the statutory rate. That the case perhaps would not have been filed without Olson's participation does not establish that her distinct environmental litigation skills were critical to the litigation. Similarly, that Olson was the only HCPC attorney with sufficient experience to litigate the case only establishes that she had more litigation experience than Jefferson, Brownscombe and Litmans; it does not establish that her distinct environmental litigation skills were crucial to the litigation. Consequently, the award of Olson's fees at the lodestar rate is proper.
2. Compensability of Hours for Work Performed Before Pro Hac Vice Admission HCPC argues that the Magistrate Judge improperly disallowed fees for hours worked by Olson before her admission to this court. I find HCPC's objection to be valid and modify the disposition of this issue because neither the EAJA nor the relevant case law mandates disallowance of fees on this basis.
HCPC objects to any consideration of this issue because defendant made this argument after the prescribed ten-day objection period. See Fed.R.Civ.P. 72(b). While HCPC's timeliness objection may be technically correct, my earlier referral of the issue to the magistrate represented my decision to consider the substance of the objection.
The EAJA requires courts to "award to a prevailing party . . . fees and other expenses . . . incurred by that party. . . ." 28 U.S.C. § 2412 (d)(1)(A). The statutory phrase "fees and other expenses incurred by that party" has been interpreted to mean a reasonable fee rate multiplied by the number of hours reasonably spent on the litigation. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Dolorosa Street, 190 F.3d at 985. The EAJA defines a reasonable fee rate as one that is "based upon prevailing market rates for the kind and quality of the services furnished, except that . . . attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor . . . justifies a higher fee." 28 U.S.C. § 2412 (d)(2)(A)(ii).
The Magistrate Judge relied on Shapiro v. Paradise Valley Unified Sch. Dist. No. 69, 374 F.3d 857 (9th Cir. 2004), in denying pre-admission fees. In Shapiro, the Ninth Circuit affirmed a district court's ruling, based solely on state law, that a party cannot recover fees for time spent in a state administrative proceeding before pro hac vice admission under the Individuals with Disabilities Education Act ("IDEA").Shapiro, 374 F.3d at 860. The district court in Shapiro specifically relied on another Ninth Circuit opinion that held that an attorney who was not licensed to practice law in California state court could not collect fees for hours spent representing a client in a state administrative hearing. Id. at 861 (district court relied on Z.A. v. San Bruno Park Sch. Dist., 165 F.3d 1273 (9th Cir. 1999)). In San Bruno Park, the district court clarified that the attorney's failure to secure a license to practice in state court deemed him a "nonlawyer advisor" under California law and, therefore, he could not collect fees as a lawyer. San Bruno Park, 165 F.3d at 1275. Thus, the decisions in both Shapiro and the case on which it relies, San Bruno Park, rest on state law that precludes attorney fees for unlicensed lawyers representing clients in state administrative hearings. Neither case speaks to whether an attorney must secure pro hac vice admission in federal district court before his or her client is entitled to recover attorneys' fees under the EAJA.
Morever, differences between the IDEA and the EAJA further distinguish Shapiro from the present litigation. As a federal law that regulates state-implemented education programs, the IDEA requires that certain actions brought under the statute begin with a state administrative challenge. Because litigation under the IDEA may be initiated and resolved at the state administrative level, the statute gives courts discretion by providing that fees "may" be awarded and are to be based on "rates prevailing in the community in which the action or proceeding arose for the kind and quality of services furnished." 20 U.S.C. §§ 1415 (i)(3)(B), (C). In contrast, the EAJA does not have a nexus to state law and specifically provides that when justified, fees "shall" be awarded and "shall" be based upon prevailing market rates subject to the statutory cap, without regard to the community in which the action arose. 28 U.S.C. §§ 2412 (d)(1)(A), (d)(2)(A). Finally, the rule established byShapiro under the IDEA is inconsistent with Ninth Circuit EAJA jurisprudence which allows prevailing parties fees for hours worked by unlicensed attorneys and law clerks.
20 U.S.C. § 1415 (f)(1) provides that parents who file an IDEA complaint are entitled to a due process hearing before a state or local education agency.
The Magistrate Judge awarded HCPC fees for hours worked by attorney Brett Brownscombe while he was not admitted to practice law in any jurisdiction. See also Sorenson v. Mink, 239 F.3d 1140 (9th Cir. 2001) (awarding fees to prevailing party for hours worked by unlicensed law clerks).
In sum, HCPC is entitled to compensation for the reasonable hours worked by Olson on this litigation before her admission to this court. The record shows that Olson spent 29.65 hours directly related to this litigation before she was admitted pro hac vice. During this time, Olson was a member in good standing of the California bar and admitted to practice in the federal district courts of California and the Ninth Circuit Court of Appeals. Olson worked all of her reasonable pre- pro hac vice hours in direct coordination with HCPC, researching and drafting complaints and motions central to HCPC's case. Olson then properly secured pro hac vice admission before appearing in this court. Consequently, HCPC is entitled to an additional $4,151.00 in attorneys' fees.
This amount represents Olson's reasonable pre- pro hac vice hours (29.65) multiplied by the lodestar hourly rate for the year 2000 ($140.00 per hour).
3. Block Billing
HCPC argues that the Magistrate Judge improperly deducted 88.7 hours for "block billing" because the hours were reasonable and spent on tasks necessary to the litigation. I adopt the magistrate's resolution of the "block billing" issue because it is the policy of this court to look skeptically upon large blocks of hours that are not differentiated by specific tasks.
District courts have an independent duty to review fee petitions for reasonableness. Gates v. Deukmejian, 987 F.2d 1392, 1401 (9th Cir. 1993). In Gates, the Ninth Circuit required district courts to provide a reasoned explanation of how they review attorney fees for reasonableness. To assist in that review, the district of Oregon has directed members of the bar to segregate large blocks of billable hours into discrete tasks to permit a determination of whether the hours were indeed reasonable. See http://ord.uscourts.gov/attorney_fee_statement.pdf.
Many of HCPC's entries failed to segregate large blocks of hours into discrete tasks, prohibiting a thorough reasonableness determination. That is a valid basis to reduce a fee award. Therefore, I adopt the Amended FR on this issue.
4. Calculation of Compensable Hours Worked by Brett Brownscombe
HCPC argues that the Magistrate Judge miscalculated HCPC attorney Brett Brownscombe's hours. I agree, and modify the Amended FR accordingly.
According to Brownscombe's declaration, he worked 156.9 hours between August 29, 2000 and October 14, 2003. The Magistrate Judge disallowed 6.1 hours for work on unsuccessful claims in 2000 and recognized 60 hours as compensable for the entire four-year period. That leaves 90.8 hours unaccounted for in the Amended FR.
29.5 hours in 2000; 61.8 hours in 2001; 44.9 hours in 2002; 20.7 hours in 2003.
My review of the file reveals that the Magistrate Judge simply miscalculated Brownscombe's hours for 2000-2002 by focusing on the hours Brownscombe "omitted" rather than those he claimed. As an example, in 2000 Brownscombe listed 15.5 hours as "omitted," the Amended FR deducted 6.1 hours for work on unsuccessful claims and HCPC was compensated for 9.4 hours, which is the difference between the "omitted" hours and the deducted hours.
I have recalculated Brownscombe's compensable hours, starting with the hours he claims in his declaration, and deducting hours based on the rationale applied in the Amended FR to the other attorneys. Thus, I have reviewed all of Brownscombe's hours for: a) time spent on unsuccessful claims; b) time spent opposing Wallowa County's motion to intervene; c) "block billing"; d) vague and obscure entries; e) time spent on clerical or secretarial tasks; and f) contemporaneous record keeping and failure to exclude inefficient time.
Based on the foregoing criteria, I find that Brownscombe's hours are subject to reduction of 9.6 hours in 2000, 5.7 hours in 2001, and 1.8 hours in 2002. I modify the Amended FR and award HCPC $19,527.80 as compensation for the hours worked by Brett Brownscombe. Specifically, HCPC is entitled to compensation for Brownscombe's hours as follows: 12.0 hours in 2000 at a rate of $70.00 per hour, or $840.00; 7.9 hours in 2000 at a rate of $140.00 per hour, or $1,106.00; 55.8 hours in 2001 at a rate of $145.00 per hour, or $8,091.00; 43.3 hours in 2002 at a rate of $147.00 per hour, or $6,365.10 and 20.7 hours in 2003 at a rate of $151.00 per hour, or $3,125.70.
This represents an $11,463.20 increase over the $8,064.60 awarded in the Amended FR.
5. Litigation Costs and Expenses
HCPC argues that the Magistrate Judge failed to award all of the costs and expenses to which it is entitled under the EAJA. HCPC's objection is valid.
As a prevailing party entitled to fees and expenses under the EAJA, HCPC qualifies to recover costs and litigation expenses under two distinct EAJA provisions. As relevant, the statute provides "a court shall award to a prevailing party other than the United States fees and other litigation expenses, in addition to any costs awarded pursuant to subsection (a)(1), incurred by that party in any civil action . . ." 28 U.S.C. § 2412 (d)(1)(A) (emphasis added). Thus, HCPC is entitled both to "costs" pursuant to subsection (a)(1) and "litigation expenses" pursuant to subsection (d)(1)(A).
The Magistrate Judge evaluated HCPC's recoverable costs only under subsection (a)(1), and failed to evaluate recoverable litigation expenses under subsection (d)(1)(A). I recalculate and award HCPC costs and expenses as outlined below.
a) Recoverable Costs Under 28 U.S.C. § 2412 (a)(1)
Recoverable costs under EAJA subsection (a)(1) are governed by 28 U.S.C. § 1920, which compensates parties for: 1) fees of the clerk and marshal; 2) fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case; 3) fees and disbursements for printing and witnesses; 4) fees for exemplification and copies of papers necessarily obtained for use in the case; 5) docket fees under § 1923; and 6) compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services.
After comparing HCPC's claimed costs with the criteria in 28 U.S.C. § 1920, HCPC is entitled to $1,102.33 as follows: filing costs ($250.00), transcript costs ($48.25), copying costs for documents filed with the court ($58.22), and other copying costs that HCPC demonstrated were necessary for the case ($745.86).
Copy costs have been disallowed where HCPC failed to identify what purpose the copies served in the litigation and where the costs were related to unsuccessful claims.
b) Recoverable Expenses Under 28 U.S.C. § 2412 (d)(1)(A)
The EAJA awards prevailing parties "fees and other expenses" incurred in the litigation. 28 U.S.C. § 2412 (d)(1)(A). The EAJA defines other expenses as "the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case. . . ." 28 U.S.C. § 2412 (d)(2)(A). This provision has been interpreted as expanding rather than contracting the expenses that are compensable under the statute. Jean v. Nelson, 863 F.2d 759, 777-78 (11th Cir. 1988); see also Int'l Woodworkers of America v. Donovan, 792 F.2d 762, 767 (9th Cir. 1985) (holding that expenses enumerated under 28 U.S.C. § 2412 (d)(2)(A) are examples, not an exclusive list). The courts in both Jean and Int'l Woodworkers upheld EAJA awards that included compensation for telephone calls, postage, air courier and attorney travel expenses. Jean, 863 F.2d at 778; Int'l Woodworkers, 769 F.2d at 767.
HCPC is entitled to compensation for long distance telephone, postage, Federal Express, fax, mileage, parking and travel under subsection (d). Therefore, after reviewing HCPC's telephone, postage, air courier and travel expenses and eliminating all entries that were too vague to be evaluated, not clearly necessary to the litigation, or related to unsuccessful claims, I award HCPC $2,930.48 for these expenses.
HCPC also is correct that the Magistrate Judge erred in awarding only $40.00 in expert witness fees under subsection (a). District courts in the Ninth Circuit award prevailing parties compensation for expert expenses under subsection (d) when the expenses were necessary for the preparation of the plaintiff's case. See, e.g., Portland Audubon v. Lujan, 865 F. Supp. 1464, 1477 (D. Or. 1994); Washington Dept. of Wildlife v. Stubblefield, 739 F. Supp. 1428, 1439 (WD Wa. 1989). InPortland Audubon, the court determined that lacking any evidence on the record to the contrary, it had no basis to disturb plaintiff's own determination that expert evidence was necessary for the preparation of its case. 865 F. Supp. at 1477.
HCPC retained its experts to establish the habitat value of the Imnaha River for native fish and to document the degradation of the river from feedlots and grazing. HCPC cited the expert declarations throughout its memorandum in support of the motion for summary judgment, including the factual background section and in support of specific substantive claims. In view of the fact that the Magistrate Judge did not rule on the admissibility of the expert declarations and specifically stated that HCPC could submit the declarations into the record through the public comment provisions of the National Environmental Policy Act, I find no basis to conclude that HCPC's expert expenses are unreasonable. Consequently, HCPC is entitled to expert expenses pursuant to EAJA subsection (d).
The EAJA sets an upper limit for expert expenses such that "no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the United States." 28 U.S.C. § 2412 (d)(2)(A)(i). There is no record of the compensation paid to any expert witness by the United States in this litigation. Consequently, I award HCPC $5,266.00 in expert expenses because both the hourly rate and total expert expenses are reasonable.
Kaz Thea billed at $65.00 per hour for 28.5 hours, or $1,787.50; Dale McCullough billed at $61.50 per hour for 31.75 hours, or $1,921.50; HCPC paid Suzanne Fouty $1,557.00 for several days of field work, data collection, data evaluation, and a written report.
6. Fees for Litigating the Fee Motion
HCPC seeks an additional $5,310.50 in attorneys' fees as compensation for 24.7 hours incurred in litigating the fee motion. USFS has not opposed this request. I find that HCPC is entitled to additional attorneys' fees because prevailing parties are entitled to recover fees for time spent litigating fee motions. Comm'r. Immigration and Naturalization Serv. v. Jean, 496 U.S. 154, 166 (1990).
In determining the amount of such fees, the Ninth Circuit has determined that a "results obtained analysis" should guide the award. Atkins v. Apfel, 154 F.3d 986, 990 (9th Cir. 1998); see also Schwarz v. Sec'y of Health and Human Serv., 73 F.3d 895, 909 (9th Cir. 1995) (holding that district courts should use discretion and consider the extent to which the party prevailed in the fee litigation when awarding fees for time spent on that litigation). HCPC has prevailed on three of its five objections to the Amended FR, resulting in an additional recovery of $19,843.20 in attorneys' fees, costs and expenses. Under the results obtained analysis, I find HCPC to be entitled to compensation for all hours spent on the successful objections where the documentation is sufficient to make this determination. For billing entries that do not differentiate between individual objections, I compensate HCPC for 60 percent (or 3/5) of the hours to account for time spent on unsuccessful objections. Accordingly, HCPC is entitled to compensation for 14.3 hours at the statutory rate adjusted for the cost of living in Portland, OR for the year 2004 ($155.00 per hour), or $2,216.50.
CONCLUSION
Consistent with the above findings, I modify the Amended FR to award HCPC an additional $17,830.80 in attorneys' fees and an additional $6,391.91 in costs and litigation expenses. I adopt all other portions of the Amended FR in their entirety.IT IS SO ORDERED.