Andrews v. United States ( 1997 )

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
No. 96-2730
D. C. Docket No. 87-116-CIV-J-PHM
GLORIA J. ANDREWS, et al.,
Plaintiffs,
DONALD ROBERT WOODMAN, Individually
and as Next Friend of Scott Forrest Woodman
and as personal representative for the
Estate of Yvonne E. Woodman,
YVONNE E. WOODMAN, Deceased, SCOTT FORREST
WOODMAN, CANDRA DAWN WOODMAN, STEVEN DWIGHT
WOODMAN, Seaman Apprentice,
Plaintiffs-Appellees-
Cross-Appellants,
versus
USA,
Defendant-Cross-Claimant-
Counter-Claimant-Appellant,
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
Defendants-Cross-Claimants-
Counter-Defendants-
Cross-Defendants,
RUFUSE SERVICES, INC.,
Defendant-Cross-Claimant-
Counter-Defendant,
DUVAL GARBAGE COMPANY,
Defendant.
_____________________
No. 96-2731
_____________________
D.C. Docket No. 90-824-CIV-J-PHM
ALVIN LINDSEY SPEICHER,
GAIL P. SPEICHER,
ALVIN LINDSEY SPEICHER, JR.,
Plaintiffs-Appellees-
Cross-Appellants,
SKYLER R. SPEICHER,
Plaintiff,
versus
USA,
Defendant-Cross-
Defendant-Cross-
Claimant-Counter-
Claimant-Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants-Cross-
Defendants-Counter-
Defendants.
2
__________________
No. 96-2732
__________________
D.C. Docket No. 90-825-CIV-J-12(PHM)
VIRGINIA HANSEN SMITH, as personal
representative for the Estate of
Michael Stramel, deceased,
Plaintiff-Appellee-
Cross-Appellant,
MICHAEL STRAMEL,
Plaintiff,
TINA M. MCBETH, CHRIS HANSEN,
JILL HANSEN LESLIE, EVA E. STRAMEL,
Plaintiffs-Appellees-
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
3
___________________
No. 96-2733
___________________
D.C. Docket No. 90-828-CIV-J-PHM
ROBERT C. RICHARDS,
VICKI L. RICHARDS,
MICHAEL B. HARTSFIELD, JR.,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Counter-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants, Counter-
Defendants,
REFUSE SERVICES, INC.,
Defendant-Cross-
Defendant, Counter-
Defendant.
___________________
No. 96-2734
___________________
D.C. Docket No. 90-830-CIV-J-PHM
ROBERT S. POWELL,
Plaintiff-Appellee,
Cross-Appellant,
4
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross
Claimants, Cross-
Defendants.
_________________
No. 96-2735
_________________
D.C. Docket No. 90-831-CIV-J-PHM
CARROLL PITTMAN,
CAROLYN J. PITTMAN,
MICHAEL K. PITTMAN,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
5
_________________
No. 96-2736
_________________
D.C. Docket No. 90-829-CIV-J-PHM
DONALD MICHAEL RENTZ,
ANNETTE RENTZ,
HELEN GOODWYNE, Deceased,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
_________________
No. 96-2737
_________________
D.C. Docket No. 90-832-CIV-J-PHM
TRACY L. PATILLO,
CONNIE S. PATILLO,
Plaintiffs-Appellees,
Cross-Appellants,
versus
6
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
_________________
No. 96-2738
_________________
D.C. Docket No. 90-834-CIV-J-PHM
KENNETH BELL, SR., DEBORAH BELL,
ROBERT BELL, KENNETH BELL, JR.,
JIMMY BELL, JERRY BELL,
PATRICIA J. BELL, MATTHEW BELL,
MICHELLE BELL, HENRY BELL,
DOLLY BELL, deceased, JAMES RICHARD BELL,
VICTORIA MAE BELL, JAMES R. BELL, JR.,
JAMIE MICHELLE BELL,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
7
Defendants.
_______________
No. 96-2739
_______________
D.C. Docket No. 90-835-CIV-J-PHM
LAWRENCE E. KERSHAW,
Plaintiff-Appellee,
Cross-Appellant,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
__________________
No. 96-2740
__________________
D.C. Docket No. 90-836-CIV-J-PHM
IDA MAE KIRK,
MICHAEL A. KIRK, Deceased,
EDMONDS WALLIS KIRK,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
8
Claimant, Counter-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants, Counter-
Defendants.
__________________
No. 96-2741
___________________
D.C. Docket No. 90-837-CIV-J-PHM
DONALD E. LEONARD, JR.,
VIRGINIA M. LEONARD,
DONALD E. LEONARD, Deceased,
WANDA LEONARD HARRISON,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
9
___________________
No. 96-2742
___________________
D.C. Docket No. 90-838-CIV-J-PHM
JAMES E. JOHNSON,
DOROTHY T. JOHNSON,
TERRANCE C. JOHNSON,
JIMMY E. JOHNSON,
JIMMY E. JOHNSON, JR.,
EUGENE B. JOHNSON,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
__________________
No. 96-2743
__________________
D.C. Docket No. 90-839-CIV-J-PHM
STANLEY C. LEVEROCK, SR.,
LINDA S. LEVEROCK,
VIOLET LEVEROCK,
STANLEY LEVEROCK, JR.,
Plaintiffs-Appellees,
Cross-Appellants,
versus
10
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
__________________
No. 96-2744
___________________
D.C. Docket No. 90-841-CIV-J-PHM
DONALD RAY THREADGILL,
BARBARA A. THREADGILL,
RONNIE WAYNE THREADGILL,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
11
________________
No. 96-2745
________________
D.C. Docket No. 90-842-CIV-J-PHM
CLIFTON A. TODD,
JEANETTE A. TODD,
TROY A. TODD,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Counter-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants, Counter-
Defendants.
___________________
No. 96-2746
___________________
D.C. Docket No. 90-844-CIV-J-PHM
NEAL THOMSEN,
JEWELL THOMSEN,
Plaintiffs-Appellees,
Cross-Appellants,
versus
12
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
_________________
No. 96-2747
__________________
D.C. Docket No. 90-843-CIV-J-PHM
ALBERT IKE NOLAN,
JEANNE NOLAN,
CAROL LYNN NOLAN,
ADRIENNE PATIENCE NOLAN,
Plaintiffs-Appellees,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
13
___________________
No. 96-2748
___________________
D.C. Docket No. 90-857-CIV-J-PHM
ROBERT D. STALEY,
Plaintiff-Appellee,
Cross-Appellant,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
___________________
No. 96-2749
___________________
D.C. Docket No. 90-846-CIV-J-PHM
CLAUDE DANIEL OGLESBY,
MARGARET OGLESBY,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant,Appellant-
Cross-Appellee,
14
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
_________________
No. 96-2750
_________________
D.C. Docket No. 90-848-CIV-J-PHM
BOY ELIJAH O’STEEN, JR.,
JOAN MARIE O’STEEN,
BOY ELIJAH O’STEEN, III,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
15
__________________
No. 96-2751
__________________
D.C. Docket No. 90-851-CIV-PHM
JOSEPH D. STRANGE,
SHIRLEY A. STRANGE,
JOSEPH D. STRANGE, JR.,
LAURA A. STRANGE,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
__________________
No. 96-2752
__________________
D.C. Docket No. 90-852-CIV-J-PHM
JANIE L. HANSLEY,
JANIE P. HANSLEY,
Plaintiffs-Appellees,
Cross-Appellants,
versus
16
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Counter-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants, Counter-
Defendants.
___________________
No. 96-2753
__________________
D.C. Docket No. 90-854-CIV-J-PHM
NEIL HANSEN,
GRETCHEN HANSEN,
TRAVIS EARL THORNTON, JR.,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
17
_________________
No. 96-2754
_________________
D.C. Docket No. 90-858-CIV-J-PHM
HENRY VORPE, JR.,
JUDY VORPE,
CHRISTI D. VORPE,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
__________________
No. 96-2755
__________________
D.C. Docket No. 90-859-CIV-J-PHM
VIVIAN E. GORE,
WILEY H. GORE,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
18
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
___________________
No. 96-2756
___________________
D.C. Docket No. 90-861-CIV-J-PHM
DORIS F. WALKER,
GARY W. WALKER,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
19
_____________________
No. 96-2757
_____________________
D.C. Docket No. 90-862-CIV-J-PHM
EDDIE WILLIAMS,
LILA M. WILLIAMS,
PENNY WILLIAMS NEWMANS,
CHRISTINE MICHELLE WILLIAMS,
REBECCA LYNN WILLIAMS,
EDDIE MICHAEL WILLIAMS,
EDDIE MICHAEL WILLIAMS, JR.,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
_______________
No. 96-2758
________________
D.C. Docket No. 90-864-CIV-J-PHM
ALICE M. ANDERSON,
STEPHEN E. ANDERSON,
TERRENCE L. ANDERSON,
Plaintiffs-Appellees,
Cross-Appellants,
versus
20
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
___________________
No. 96-2759
___________________
D.C. Docket No. 90-865-CIV-J-PHM
LEWIS D. BOWEN,
SARAH CHRISTINE FLINK BOWEN,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.
WASTE MANAGEMENT, INC.
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
_________________
No. 96-2760
__________________
21
D.C. Docket No. 90-866-CIV-J-PHM
JOHN P. BUETTGEN,
JANICE BEUTTGEN,
DAWN BUETTGEN,
JODY BUETTGEN,
KENNETH BUETTGEN,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.
WASTE MANAGEMENT, INC.
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
___________________
No. 96-2761
___________________
D.C. Docket No. 90-867-CIV-J-PHM
STEPHEN BRANNEN,
MISTY VELL BRANNEN,
STEPHANIE JO BRANNEN,
SHERRIE FAYE BRANNEN,
MELISSA BRANNEN MCDANIEL,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
22
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Defendants.
________________
No. 96-2762
_________________
D.C. Docket No. 90-869-CIV-J-PHM
JOHN M. FLORES,
FLORENCE FLORES,
PATRICIA JO BELL, as personal
representative for the Estate of
Florence Flores, deceased,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
__________________
No. 96-2763
__________________
D.C. Docket No. 90-872-CIV-J-PHM
23
ALBERT G. BELZ,
BETTY BELZ,
JOHN CLARENCE BELZ,
FREDERICK G. BELZ, I,
FREDERICK G. BELZ, II,
SUZANNE E. BELZ,
ROBERT J. BELZ,
WILLIAM B. BELZ,
FREDERICK G. BELZ, III,
MARY M. BELZ,
JOSHUA BELZ,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants, Cross-
Defendants.
___________________
No. 96-2764
___________________
D.C. Docket No. 90-874-CIV-J-PHM
WAYNE K. HAZEN,
PATRICIA CHRISTOPHER,
Plaintiffs-Appellees,
Cross-Appellants,
versus
USA,
Defendant-Cross-
Defendant, Cross-
Claimant, Appellant-
24
Cross-Appellee,
WASTE CONTROL OF FLORIDA, INC.,
WASTE MANAGEMENT, INC.,
REFUSE SERVICES, INC.,
Defendants-Cross-
Claimants-Cross-
Defendants.
____________________________
Appeals from the United States District Court
for the Middle Disitrict of Florida
____________________________
(September 19, 1997)
Before DUBINA, Circuit Judge, HILL and GIBSON*, Senior Circuit
Judges.
DUBINA, Circuit Judge:
________________________
*Honorable John R. Gibson, Senior U.S. Circuit Judge for the
Eighth Circuit sitting by designation.
The United States appeals the district court’s award of
attorneys’ fees to plaintiffs/appellees/cross-appellants
(“plaintiffs”) pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, on plaintiffs' claims under the
Comprehensive Environmental Response, Compensation, and Liability
Act of 1980 (“CERCLA”), 42 U.S.C. § 960(a). The government
contends the fee award was disproportionately high. Plaintiffs
cross-appeal, claiming the award was too low. We agree with the
government and remand for a redetermination of attorney's fees.
25
I. BACKGROUND
The opinion we issue today is one in a series of related
appeals which detail the facts of this case. See Woodman v. United
States, ___ F.3d ___, ___-___ (11th Cir. 1997). We summarize those
facts here, and we set forth additional procedural history relevant
to the issues in these appeals.
The United States Navy contracted with a private company,
Waste Control of Florida, Inc. (“Waste Control”), to remove
hazardous chemical waste from two Jacksonville-area naval bases in
the 1960s. For nearly two years, Waste Control dumped Navy waste
at a swampy landfill in southwest Jacksonville. Nearby residents
drew their water from wells. Toxic chemicals from the Navy waste
leached into the groundwater and polluted the wells. The residents
sued the United States under the Federal Tort Claims Act (“FTCA”),
28 U.S.C. §§ 2671-2680, and CERCLA. They sued Waste Control and
two of its affiliates under CERCLA and Florida law.
Plaintiffs sought damages under CERCLA for (1) future medical
monitoring costs, (2) statutory attorneys' fees, and (3) the
expenses of obtaining alternate water supplies. Early in the
litigation, the district court ruled that the only damages
plaintiffs could recover under CERCLA were “their expenditures for
connecting to the water line provided by the City of Jacksonville
and their expenditures for bottled water.” Woodman v. United
States, 764 F. Supp. 1467, 1470 (M.D. Fla. 1991). In a subsequent,
unpublished order, the district court ruled that plaintiffs could
not recover attorneys' fees directly under CERCLA in light of the
26
Supreme Court's decision in Key Tronic Corp. v. United States, 114
S. Ct. 1960 (1994). In Key Tronic, the Court held that CERLCA
“does not provide for the award of private litigants' attorney's
fees associated with bringing a cost recovery action.” Id. at
1967. Plaintiffs do not appeal either of these district court
rulings.
Prior to trial, the government and the private contractors
took the unusual step of filing motions for summary judgment on
behalf of plaintiffs on the CERCLA claims. The district court
granted the motions and entered findings of fact no longer in
dispute, pursuant to FED. R. CIV. P. 56(d). The government objected
to these findings on the ground that they established elements of
the unresolved FTCA claims. The district court then vacated its
order entering summary judgment, and litigation proceeded on all
claims.
Plaintiffs settled with the private contractors on the eve of
trial for $8.5 million. According to plaintiffs, the parties
allocated $2.5 million of that settlement for attorneys' fees.
They designated one-third of that sum, or $833,333.33, for
attorneys' fees on the CERCLA claims. A five-phase trial proceeded
on plaintiffs' claims against the United States. After the first
phase of trial, the district court found the government liable
under both the FTCA and CERCLA. Rather than litigate the CERCLA
damages, the parties stipulated to a schedule of response costs
that the United States would pay to 39 of the 171 plaintiffs. The
stipulated costs totaled $49,549.00 for obtaining alternate water
27
supplies. The district court entered judgment against the United
States on the CERCLA claims and reduced the stipulated costs by the
amount of the CERCLA settlement with the private contractors.
After the set-off, only one plaintiff obtained a CERCLA award
against the government, in the amount of $700.
Plaintiffs applied to the district court pursuant to the EAJA
for attorneys' fees and costs incurred in litigating their CERCLA
claims. According to plaintiffs' fee application, their attorneys
and paralegals spent approximately 30,000 hours litigating this
case. Plaintiffs sought compensation for half of that time, plus
half of their total costs, for a total of $1,462,298.84.1
Plaintiffs argued that the CERCLA and FTCA claims overlapped so
extensively that the best way to determine which hours were
attributable to the CERCLA claims was simply to divide the total
hours in half.
The district court made a preliminary finding that the EAJA
applied because the government's position on the CERCLA claims was
not “substantially justified.” See 28 U.S.C. § 2412(d). The court
found that the total number of hours expended and amount of
expenses incurred were reasonable. However, the court ruled that
plaintiffs were entitled under the EAJA only to one-third, not one-
half, of those hours and expenses. The court reasoned that
plaintiffs had allocated one-third of the fees and costs portion of
their settlement with the private contractors to CERCLA fees and
1
Plaintiffs computed the total figure by multiplying 15,000
hours times hourly rates not exceeding the EAJA's statutory cap.
Those hourly rates are not at issue in this appeal.
28
costs, and the same division should apply to their CERCLA claims
against the United States. Then, the district court reduced the
one-third by a further 78% because only 22% of the individual
plaintiffs had prevailed on their CERCLA claims. Ultimately, the
judge awarded plaintiffs $180,880 in CERCLA fees and expenses,
approximately 12% of the amount they requested.
The government appeals, claiming that the number of hours for
which plaintiffs' attorneys sought reimbursement was so
unreasonable that the district court should have denied the fee
application outright. Alternatively, the government argues that
the award is too high. The government does not appeal the district
court's finding that its position on the CERCLA claims was not
substantially justified. Plaintiffs cross-appeal. They do not
contest the district court's decision to allocate one-third of
their hours to the CERCLA claims, but they argue that the district
court erred by reducing their award by 78%.
II. DISCUSSION
We review the district court's award of attorneys' fees and
costs under the EAJA for abuse of discretion. Pierce v. Underwood,
487 U.S. 552 (1988).
The EAJA permits parties who prevail against the United States
in a civil action to recover attorneys' fees and costs unless the
government's position was “substantially justified.” 28 U.S.C. §
2412(d); see also Commissioner, I.N.S. v. Jean, 496 U.S. 156, 158
(1990). The EAJA specifically excludes recovery for fees and costs
expended on tort claims. See 28 U.S.C. § 2412(d)(1)(A); Joe v.
29
United States, 772 F.2d 1535 (11th Cir. 1985). Thus, the EAJA
allows plaintiffs to recover fees and costs incurred in litigating
their CERCLA claims, but not their FTCA claims.2
The government's first argument is that the district court
should have rejected plaintiffs' fee application outright because
it was so outrageous. According to the government, “[t]he CERCLA
claims were not sufficiently complex, nor sufficiently contested,
to require anything close to 15,000 of attorney and paralegal
time.” Br. for Appellant at 16. The government argues that
outright denial of plaintiffs' fee application would induce
claimants to submit reasonable, carefully calculated fee demands.
Although the Eleventh Circuit has not decided the issue, the
government cites cases from several other circuits holding that
district courts do not abuse their discretion by denying in their
entirety fee applications that are grossly inflated. See, e.g.,
Environmental Defense Fund, Inc. v. Reilly, 1 F.3d 1254, 1258 (D.C.
Cir. 1993); Fair Housing Council v. Landow, 999 F.2d 92, 96-97 (4th
Cir. 1993); Brown v. Stackler, 612 F.2d 1057, 1059 (7th Cir. 1980);
see also Loranger v. Stierheim, 10 F.3d 776, 782 n. 8 (11th Cir.
1994) (recognizing that other circuits permit outright denial but
not deciding the question).
Even if we adopted such a rule, it would not provide a basis
for vacating the district court's fee award in this case. The
2
We note also that plaintiffs may not recover fees and costs
expended on their FTCA claims in light of our decision in the
related appeals that plaintiffs cannot prevail on their FTCA
claims. See Woodman v. United States, ___ F.3d ___ (11th Cir.
1997).
30
district court expressly found that the government's unjustified
refusal to admit any of the CERCLA allegations “bordered on bad
faith” and necessitated “extensive pretrial investigation,
discovery and preparation.” R-7-904, Dist. Ct. Mem. Op. at 6-7.
The district court also found that the total hours expended by
plaintiffs' counsel were reasonable and that the government only
challenged 3,000, or 10%, of them. The government fails to show
that these findings were clearly erroneous. Therefore, there is no
evidence that plaintiffs egregiously exaggerated their fee
application. The district court did not abuse its discretion by
rejecting the government's bid for an outright denial of attorneys'
fees.
Next, the government argues that the district court abused its
discretion by failing to consider the limited success plaintiffs
achieved on their CERCLA claims. The starting point for
determining a reasonable fee award is multiplying the number of
attorney hours reasonably expended by a reasonable hourly rate.
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Norman v. Housing
Auth. of City of Montgomery, 836 F.2d 1292, 1302 (11th Cir. 1988).
The district court may then adjust the resulting “lodestar”
depending upon a variety of factors, the most important of which is
the degree of the plaintiff's success in the lawsuit. Hensley, 461
U.S. at 433. “[W]here the plaintiff has achieved only limited
success, the district court should award only that amount of fees
that is reasonable in relation to the results obtained.” Id. at
31
440. We agree that the district court abused its discretion by not
giving greater weight to plaintiffs' limited success.3
Plaintiffs' success on their CERCLA claims was minimal by any
measure. First, the CERCLA damages the court awarded plaintiffs
were infinitesimal compared with those they requested. Plaintiffs
sought more than $3.5 million for three types of CERCLA damages:
(1) future medical monitoring expenses, which the court valued at
$2.1 million; (2) statutory attorneys' fees, which plaintiffs
valued at $1.4 million, and (3) alternative water supply expenses.
Plaintiffs were awarded only the last category of damages--and only
$49,549.4 This figure represents less than 1% of the amount
plaintiffs sought. Second, plaintiffs' CERCLA damages were slight
in comparison with plaintiffs' overall award. The CERCLA award
accounted for only 3% of the total award. Third, the CERCLA
victory was not successful in the sense that it vindicated an
important non-monetary principle, as may be the case with civil
rights litigation. See, e.g., Popham v. City of Kennesaw, 820 F.2d
3In light of this decision, we do not reach the other
arguments advanced by the government, nor do we consider
plaintiffs' cross-appeal.
4
This figure dropped to $700 after the set-off for plaintiffs'
settlement with the private contractors. Although we have not
considered this issue, the Third Circuit has held that set-offs
should not be considered in determining a prevailing party's degree
of success for fee application purposes. See Gulfstream III
Assocs., Inc. v. Gulfstream Aerospace Corp., 995 F.2d 414, 423 (3rd
Cir. 1993) (“[T]he reduction of a plaintiff's net recovery due to
the offset of a jury verdict by prior settlements does not indicate
that plaintiff failed to prove any of its claims at trial. It may
merely reflect plaintiff's skill as a negotiator with the other
defendants . . .”). We need not resolve this issue here because
plaintiffs' CERCLA success was slight whether measured before or
after the set-off.
32
1570, 1580 (11th Cir. 1987) (“The affirmation of constitutional
principles produces an undoubted public benefit that courts must
consider in awarding attorneys' fees . . .”).
Plaintiffs argue that they achieved substantial success on
their CERCLA claims. They point out that they succeeded on their
medical monitoring claims, albeit under the FTCA rather than
CERCLA. There are two problems with this argument. First, we
reversed plaintiffs' victory on medical monitoring damages under
the FTCA. See Woodman, ___ F.3d ___ (11th Cir. 1997). Second,
even if plaintiffs had succeeded on their medical monitoring claims
under the rubric of the FTCA, that success could not count for the
purpose of calculating an EAJA fee award because the EAJA does not
permit recovery of fees and costs expended on tort claims.
The district court did consider plaintiffs' limited success in
one respect: the court reduced the amount of the fee award by 78%
because only 22% of the plaintiffs won a CERCLA award. However,
the district court did not consider that plaintiffs prevailed on
only one of their three CERCLA claims and their monetary award on
that claim was quite small. Instead, the district court awarded
plaintiffs fees and costs totaling nearly four times the amount of
their CERCLA award. Although the Supreme Court has “reject[ed] the
proposition that fee awards . . . should necessarily be
proportionate to the amount of damages a civil rights plaintiff
actually recovers,” Riverside v. Rivera, 477 U.S. 561, 574 (1986);
see also Cullens v. Georgia Dep't of Transp., 29 F.3d 1489, 1493
(11th Cir. 1994) (discussing Riverside), this was not a civil
33
rights action. As noted, the best--and perhaps only--measure of
plaintiffs' success on their CERCLA claims was their monetary
damages award.
The district court's failure to consider plaintiffs' minimal
CERCLA success was an abuse of discretion. Accordingly, we vacate
the district court's award of fees and costs under the EAJA and
remand for recalculation.
VACATED and REMANDED.
34