UNITED STATES DISTRICT COURT, DISTRICT OF COLUMBIA
May 5, 1981
NORTH SLOPE BOROUGH, et al., Plaintiffs,
Cecil D. ANDRUS and Richard A. Frank, Defendants, Atlantic Richfield Company, et al., Intervenor-Defendants. NATIONAL WILDLIFE FEDERATION, et al., Plaintiffs, v. Cecil D. ANDRUS and Richard A. Frank, Defendants, Atlantic Richfield Company, et al., Intervenor-Defendants. VILLAGE OF KAKTOVIK, et al., Plaintiffs, v. Cecil D. ANDRUS and Richard A. Frank, Defendants, Atlantic Richfield Company, et al., Intervenor-Defendants
The opinion of the court was delivered by: ROBINSON, JR.
Before the Court are Plaintiff's Motions for Attorneys' Fees in the above captioned action. The history of this litigation may be summarized as follows:
Three sets of Plaintiffs, North Slope Borough (NSB), the National Wildlife Federation (NWF), and the Village of Kaktovik (VOK) brought suit against then Secretary of Interior Cecil D. Andrus, et al., alleging certain violations of the Endangered Species Act (ESA), 16 U.S.C. § 1531 et seq., the Outer Continental Shelf Lands Act (OCSLA), 43 U.S.C. § 1331 et seq., the National Environmental Policy Act (NEPA), 42 U.S.C. § 4321 et seq., the Federal Trust Responsibility (FTR) to the Inupiat Indians, and various other environmental statutes.
These alleged violations resulted from a proposed (and now consummated) OCSLA lease sale, in the Beaufort Sea, off the North Slope of Alaska. Subsequent to the filing of the complaint, the Court permitted the intervention of the Atlantic Richfield Co., and other potential lessees, and permitted the State of Alaska to participate as amicus. The intervenors and the State of Alaska assumed the posture of defendants in this litigation.
On December 7, 1979, after receipt of extensive briefs from the parties and oral argument, this Court denied Plaintiffs' Motion for a Preliminary Injunction. The Court held that, while Plaintiffs had shown a substantial likelihood of success on the merits,
an expedited briefing schedule precluded serious irreparable harm prior to a final determination on the merits.
On January 22, 1980, the Court resolved the merits of the instant case, holding, inter alia, that consummation of the proposed lease sale would violate the ESA
The Court found no violations of the OCSLA.
On May 1, 1980, the Court ruled that Plaintiffs were entitled to "reasonable attorneys' fees for all litigation involving the (ESA and OCSLA)," that they were not so entitled for litigation involving other aspects of the instant case, and that "in areas common to both fee-providing and non fee-providing statutes, such as the preparation of facts, Plaintiffs are to be awarded reasonable attorneys' fees for all time spent on those common issues."
On October 9, 1980, the Court of Appeals reversed this Court's ruling on all issues in which Plaintiffs had prevailed, except for the issue of entitlement of attorneys' fees,
and affirmed all rulings favorable to Defendants.
While the Court of Appeals may have lacked jurisdiction over the merits of this action because this Court had not determined the amount of the attorneys fees to be awarded, and thus there was arguably no appealable final judgment,
this issue is not presented here. On January 21, 1981, the parties filed a Stipulation of Settlement Between Plaintiffs and Federal Defendants Regarding Attorneys Fees. Prior to approval of that settlement agreement by the Court, Federal Defendants filed a Notice of Withdrawal of the Stipulation, thereby breaching the Agreement.
The Court has subsequently become embroiled in attorneys' fees litigation.
On February 3, 1981, the Court reaffirmed its prior ruling that Plaintiffs were entitled to reasonable attorneys fees. In its Order, the Court analyzed the attorneys' fees issue in light of Metropolitan Washington Coalition for Clean Air v. D.C., 205 U.S. App. D.C. 280, 639 F.2d 802 (D.C.Cir.1981), and Copeland v. Marshall, 205 U.S. App. D.C. 390, 641 F.2d 880 (D.C.Cir.1980). After finding that Metropolitan Washington mandated an award of fees,
the Court stated that
(considering) the complexity of this litigation, the time necessarily spent by counsel, the excellent quality of representation, and the prevailing market rates for comparable legal services ... the award contained in the stipulation appears modest. Plaintiffs, however, seeking to avoid further litigation, have strongly urged the Court to approve that award.
The Court then awarded, under Copeland, the exact amount stipulated to by the parties.
Underlying this Court's February 3, 1981 Order was the hope further litigation on this issue would be unnecessary. Unfortunately, Federal Defendants expressed the desire to further pursue the issue. This Court noted, on February 20, 1981
(if) the Federal Defendants appeal this Court's February 3, 1981 Order, which effectively enforced the Stipulation, Plaintiffs will have been deprived of the major benefit of compromise permanent resolution of the attorneys' fees issue.... Plaintiffs made substantial financial concessions when they entered into the Stipulation. The records submitted with Plaintiffs' Motion to Reconsider indicate that Plaintiffs may be entitled to an aggregate sum approaching $ 200,000 for their efforts in this litigation. This figure more closely approximates this Court's rough evaluation of the amount Plaintiffs may be entitled to receive under Copeland.
North Slope Borough v. Andrus, No. 79-3193 (February 20, 1981), slip op. at 3. The Court therefore determined that Plaintiffs were entitled to judicial resolution of the amount of attorneys' fees, consistent with Copeland.
Defendants have once again challenged Plaintiffs' entitlement to attorneys fees, and requested a hearing on the issue. On April 24, 1981, this Court set a hearing for April 29, 1981. By Order, the Court indicated that it would hear oral argument on Defendants' Motion for Reconsideration, and would consider any evidence presented by Defendants to rebut Plaintiffs' attorneys' fees claims. Defendants informed the Court at the April 29, 1981 hearing that they did not intend to review the costs, hours and fees claimed by Plaintiffs, and thus waived their right to an evidentiary hearing. See Copeland v. Marshall, At 905.
Defendants are joined by Intervenor-Defendants in their opposition to an award of attorneys' fees. First, they attempt to distinguish this cause from Metropolitan Washington, alleging that that case is inapposite to the instant litigation because it involved a different statute. This contention is meritless. Metropolitan Washington involved analysis of the citizen's suit provision in the Clean Air Act, 42 U.S.C. § 7607(f). That statute provided the model for the virtually identical citizen's suit provisions in the ESA and OCSLA, and the reason for enactment of the citizen's suit provision in all three statutes is identical. The Court of Appeals opinion in Metropolitan Washington controls entitlement to attorneys' fees in the instant case.
Defendants and Intervenor-Defendants next allege that, even under Metropolitan Washington, no award of fees is "appropriate."
They assert that (1) this case involved no complex legal issues and (2) and award of fees is not in the public interest. These contentions lack vitality. Defendants and Intervenor-Defendants first assertion belittles the considerable energy spent by all concerned including this Court and the Court of Appeals. The novelty and complexity of the legal issues presented is adequately reflected in the opinions of both this Court and the Court of Appeals, and needs no further elucidation here.
It is also evident that this case served the public interest. Manifestly unclear questions of first impression were presented under both the ESA and OCSLA, including, inter alia, how the Department of Interior should address issues involving both statutes. At stake in the litigation was a delicate frontier environment, the survival of an endangered species, and the need for expedited development of OCS resources.
The "appropriateness" of an attorneys' fees award is determined by analyzing whether "the underlying suit was a prudent and desirable effort to achieve an unfulfilled objective of the Act."
The appropriateness of a fee award may thus be viewed on a continuum some suits will reflect more "prudent and desirable effort(s)" than others. As the trier of fact in Metropolitan Washington, this Court has the unique ability to evaluate the propriety of an award in the instant case. Plaintiff in Metropolitan Washington was at the "less appropriate" end of the continuum; Plaintiffs in the instant litigation personify the "most appropriate" end. Denial of an award of attorneys' fees in this action would throw the issue of entitlement under the applicable statutes completely into disarray.
In fact, denial of a fee award could only be supported by application of the "substantially prevailing party" standard. This would require amending the ESA and the OCSLA, a task beyond the power of the Court. The Court once again affirms Plaintiffs' entitlement to attorneys' fees.
I. Defendants' Assertion of "Principles"
Defendants have asserted that five "principles" must be applied to ascertain the amount of attorneys' fees to which Plaintiffs are entitled, to wit: (1) the Court must assess what hours spent were "reasonable;" (2) the Court must require proper documentation of the hours spent;
(3) duplicative time must not be deemed compensable;
(4) claims reflecting inefficient use of hours must be discounted; and (5) in balancing the "public interest" of the litigation, the Court should discount the amount requested because Plaintiffs have not prevailed. The first four of these general principles are clearly warranted and undisputed. Copeland v. Marshall, At 891-892, 900-903; Jordan v. United States Department of Justice, 89 F.R.D. 537, at 541 (D.D.C.1981). Regarding the fifth "principle," the Court in Copeland noted that the nature of success should be considered in adjusting the fee "under the rubric of "quality of representation.' " At 893. As this Court has already noted, however, all of Plaintiffs' counsel were "highly competent and thorough in their presentation of this litigation."
While application of this fifth "principle" may prove to be relevant in a different context, it is useless here.
II. Assessment of Reasonable Hours
As the Court in Copeland stated, "the first task for the trial judge ... is determining the amount of time reasonably expended." Id., at 891. In assessing the reasonableness of the hours spent, the Court must (1) segregate into categories the types of work performed by each participating attorney, (2) ascertain to what extent the time spent was productive, and (3) eliminate both unproductive n21 and uncompensable n22 time. Id., at 891. This breakdown is set forth below:
A. Village of Kaktovik
Attorney & Type of Work Hours Claimed Compensable Time
Experienced Attorney: Appearances 29 29
Experienced Attorney: Initial Research 22 18
Experienced Attorney: Pleadings 261 192
Experienced Attorney: Conference 52 49
Less Experienced Attorney: Hearings 14 8
Less Experienced Attorney: Initial Research 3 3
Less Experienced Attorney: Pleadings 40 40
Less Experienced Attorney: Conferences 14 14
Third Year Law Students 329 282
B. National Wildlife Federation
Experienced Attorney: Appearances 36 36
Experienced Attorney: Pleadings 164 164
Less Experienced Attorney: Appearances 30 26
Less Experienced Attorney: Pleadings 220 220
Legal Intern: 20 20
C. North Slope Borough
Attorney & Type of Work Hours Claimed Compensable Time
Very Experienced Attorney: Initial Analysis 85.00 82.00
Very Experienced Attorney: Pleadings, Appear-
ances, Conferences 213.00 160.85
Less Experienced Attorney: Initial Analysis 69.50 64.50
Less Experienced Attorney: Pleadings, Appear-
ances, Conferences 524.00 338.75
Inexperienced Attorney: Initial Analysis 24.25 24.25
ances, Conferences 446.50 308.75
Paralegals: 137.00 135.00
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