Nrdc v. Winter ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATURAL RESOURCES DEFENSE 
COUNCIL, INC.; THE INTERNATIONAL
FUND FOR ANIMAL WELFARE;
CETACEAN SOCIETY INTERNATIONAL
OCEAN FUTURES SOCIETY; JEAN-
MICHEL COUSTEAU,
Plaintiffs-Appellees,
v.
DONALD C. WINTER, in his official
capacity as Secretary of the Navy;
UNITED STATES DEPARTMENT OF THE No. 07-55294
NAVY; CARLOS M. GUTIERREZ, in
his official capacity as Secretary  D.C. No.
CV-06-04131-FMC
of the Department of Commerce;
NATIONAL MARINE FISHERIES OPINION
SERVICE; WILLIAM HOGARTH, in his
official capacity as Assistant
Administrator for Fisheries of the
National Oceanic and Atmospheric
Administration; CONRAD C.
LAUTENBACHER, Jr., Vice Admiral,
in his official capacity as
Administrator of the National
Oceanic and Atmospheric
Administration,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
12945
12946 NRDC v. WINTER
Argued and Submitted
June 6, 2008—Pasadena, California
Filed September 16, 2008
Before: William C. Canby, Jr., Jay S. Bybee, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
NRDC v. WINTER 12949
COUNSEL
Kathryn E. Kovacs, United States Department of Justice,
Environment & Natural Resources Division, Washington,
D.C., for the defendants-appellants.
Richard B. Kendall, Irell & Manella LLP, Los Angeles, Cali-
fornia; Joel R. Reynolds, Natural Resources Defense Council,
Inc., Santa Monica, California, for the plaintiffs-appellees.
12950 NRDC v. WINTER
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Defendant-Appellant, Donald C. Winter (the Navy),
appeals the district court’s decision to award attorneys’ fees
to Plaintiffs pursuant to the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412. The Navy claims that (1) the
amount of the award for some of the attorneys working on the
case should not have been enhanced above the statutory rate,
(2) the limited extent of Plaintiffs’ success merited a reduc-
tion in fees, and (3) the award of appellate fees was improper
because the fee application was filed in the district court, not
in the court of appeals. We conclude that the district court did
not abuse its discretion on the second and third issues. How-
ever, because we conclude that the standard used by the dis-
trict court to determine the first issue constitutes an error of
law, we vacate the district court’s order awarding fees and
remand for additional fact finding and recalculation of fees in
accordance with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
A. The RIMPAC 2006 Suit
On June 28, 2006, the Natural Resources Defense Council
(NRDC), along with several other environmental groups (col-
lectively, Plaintiffs) filed suit (hereinafter NRDC II) against
Winter, in his capacity as Secretary of the Navy, alleging that
the Navy had violated the National Environmental Policy Act
(NEPA), the Marine Mammal Protection Act (MMPA), and
the Administrative Procedure Act (APA). Plaintiffs also filed
an application for a temporary restraining order (TRO) and a
preliminary injunction to enjoin the Navy’s use of mid-
frequency active sonar during its Rim of the Pacific (RIM-
PAC) 2006 training exercise. RIMPAC 2006 was a major
multi-national Navy training exercise that took place in the
waters surrounding the Hawaiian Islands from June 26 to July
NRDC v. WINTER 12951
28, 2008. Starting July 6, the training included the use of mid-
frequency active sonar, which is known to disrupt some of the
marine mammals that live in those waters. Attorneys at the
California-based firm Irell & Manella LLP (Irell) provided
outside representation to the environmental groups.
On June 30, the Navy invoked the national defense exemp-
tion contained in the MMPA, which had the effect of exempt-
ing all mid-frequency active sonar activity from compliance
with the MMPA. The Navy also stated its intent to comply
with the mitigation measures set forth in the Incidental
Harassment Authorization approved by the National Marine
Fisheries Service on June 27.
On July 3, the district court granted the TRO on the NEPA
claim, enjoining the use of mid-frequency active sonar for ten
days pending a hearing on whether to grant a preliminary
injunction, and also ordered the parties to “meet and confer
. . . to determine if an agreement can be reached on mitigation
measures that would avoid the need for further provisional
relief in this case.” The Navy immediately appealed the TRO
to this court.
The parties settled four days later, on July 7, one day after
the scheduled start of sonar training. As part of the settlement,
the Navy agreed to implement or modify several mitigation
measures it had previously rejected. The TRO appeal was vol-
untarily dismissed on motion by the parties prior to any ruling
on the merits. In this case, we consider the propriety of the
district court’s award of attorneys’ fees.
B. Companion Case
At the time Plaintiffs brought this suit, a companion case
was concurrently being litigated in the same court, in front of
the same judge. NRDC v. Winter, No. CV 05-7513 FMC
(C.D. Cal. filed Oct. 19, 2005) (hereinafter NRDC I). At the
time the TRO was granted in NRDC II, the attorneys were still
12952 NRDC v. WINTER
litigating threshold issues such as jurisdiction and standing in
NRDC I. In fact, the Second Amended Complaint in NRDC
I was not filed until April 2008, and the case is still being liti-
gated.
NRDC I challenges the Navy’s use of mid-frequency active
sonar in all of its testing and training exercises, including the
biennial RIMPAC training exercise, alleging violations of
NEPA, APA, and the Endangered Species Act. The same
legal issues presented in this suit — whether the Navy com-
plied with certain federal statutes — remain at issue in NRDC
I. The factual issues are also substantially the same, except
that NRDC I covers a wider range of Navy training exercises.
Finally, the NRDC I Plaintiffs are all involved in this suit
with the exception of the League for Coastal Protection.
Plaintiffs’ counsel for NRDC I included all of the Irell attor-
neys, the senior NRDC attorneys, and one of the junior
NRDC attorneys litigating this suit. At least two of the Navy’s
attorneys in NRDC I are also involved in this case.
C. Background of Plaintiffs’ Attorneys
Plaintiffs’ attorneys consisted of two senior and two junior
in-house attorneys from NRDC, as well as one senior litiga-
tion partner and three junior associates from Irell. The Navy
does not contest the award of enhanced fees for the efforts of
the two senior NRDC attorneys, so we do not discuss their
qualifications.
1. Junior NRDC attorneys
During the prosecution of this suit, one junior NRDC attor-
ney served as counsel in NRDC I and in NRDC v. Gutierrez,
457 F.3d 904 (9th Cir. 2006), the latter also being a challenge
to the Navy’s use of low-frequency sonar. At NRDC, she
worked primarily on marine mammal protection and devel-
oped expertise on the specific issue of high-intensity under-
NRDC v. WINTER 12953
water sound. She has co-authored a journal article and a
report on the topic of sonar and has spoken at the United
Nations and other environmental law fora on the issue. She
also served as part of a working group drafting guidelines for
the conduct of noise-producing activities in the Mediterranean
Sea.
The second NRDC junior attorney had graduated from law
school and had worked as a full-time consultant-paralegal at
NRDC for over ten years, but was not a member of the bar
at the time this suit was settled. He also had developed exper-
tise in the area of high-intensity underwater sound. He is the
author of two editions of a report and the co-author of a jour-
nal article on the topic of noise and its effect on mammals,
and the co-author for the entry for “sonar” in the Encyclope-
dia of Tourism in Marine Environments. He had been
appointed an Alternate Member and Subcommittee Member
to the Federal Advisory Committee on Acoustic Impacts on
Marine Mammals convened by the U.S. Marine Mammal
Commission, and served on the review panel for the Congres-
sional Research Service’s 2005 report to Congress entitled
“Active Military Sonar and Marine Mammals.” Finally, he
had spoken at numerous events on the impact of sonar on
marine mammals.
2. Irell attorneys
The Irell senior litigation partner who served as co-lead
counsel in this case has a broad litigation practice. There is
evidence in the record that he has experience in alternate dis-
pute resolution and arbitration, appellate litigation, entertain-
ment transactions, intellectual property litigation, and general
litigation. His environmental law experience consisted of
serving as co-lead counsel in NRDC I and one other case,
NRDC v. U.S. Dep’t of the Navy, 857 F. Supp. 734 (C.D. Cal.
1994). In the 1994 case, NRDC challenged the Navy’s testing
of explosives near the Channel Islands National Marine Sanc-
tuary on the basis of evidence of harm to marine life from
12954 NRDC v. WINTER
high-intensity sound as well as the Navy’s alleged failure to
comply with NEPA and MMPA.
Three junior associates at Irell also served as counsel in
NRDC I. According to the record, however, none of these
three associates has any other prior experience in environmen-
tal litigation. Nor is there any indication that any has authored
any articles, done any research, participated in any fora, or
otherwise developed a specialty in environmental matters.
Nothing in the record suggests that environmental litigation
was a practice area for any of the three Irell associates.
D. Motion for Attorneys’ Fees Under EAJA
After NRDC II was dismissed, NRDC filed a motion pursu-
ant to the EAJA for fees and costs in the district court for the
work done by NRDC and Irell attorneys. The district court
granted the motion, awarding fees totaling $437,584.24 for
work in the district court and on the TRO appeal. In doing so,
the district court first found that Plaintiffs were eligible for
attorneys’ fees under the EAJA and that they were the prevail-
ing parties. The court also found that the Navy’s position was
not substantially justified such that an award of fees would be
unmerited. The Navy does not contest these findings on
appeal. The district court also deducted hours that it found did
not directly and substantially contribute to meeting the Plain-
tiffs’ litigation goals. NRDC and Irell do not contest these
deductions.
In determining the fee, the district court applied an
enhanced hourly rate above the statutory cap of $125 per
hour, finding that counsel brought distinctive skills unavail-
able at the statutory rate. The district court found distinctive
skills for two reasons. First, it found that environmental litiga-
tion is an identifiable practice specialty requiring distinctive
knowledge. Second, it found that all the attorneys involved in
NRDC II had highly specialized skills acquired from NRDC
I because the cases involved similar factual and legal issues
NRDC v. WINTER 12955
on behalf of nearly identical clients, against the same agency.
The Navy timely appeals the fee award.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review the amount of attorneys’ fees awarded by a district
court for abuse of discretion. Pierce v. Underwood, 487 U.S.
552, 571 (1988). However, “ ‘any elements of legal analysis
and statutory interpretation which figure in the district court’s
decision are reviewable de novo.’ ” Cabrales v. County of Los
Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991) (quoting Hall
v. Bolger, 768 F.2d 1148, 1150 (9th Cir. 1985)).
DISCUSSION
[1] The EAJA, 28 U.S.C. § 2412, allows prevailing parties
to recover attorneys’ fees in cases brought by or against the
United States unless the position of the United States in the
litigation was substantially justified, or special circumstances
make an award unjust. 28 U.S.C. § 2412(d)(1)(A).1 The Navy
does not contest the district court’s decision to award fees in
this case, but rather the amount of the fee award. Specifically,
the Navy challenges the district court’s decision to award
enhanced fees to several attorneys, its refusal to reduce fees
on account of limited success, and the court’s award of attor-
neys’ fees to Plaintiffs for hours spent preparing the appeal of
the TRO.
1
28 U.S.C. § 2412(d)(1)(A) states:
Except as otherwise specifically provided by statute, a court shall
award to a prevailing party other than the United States fees and
other expenses, in addition to any costs awarded pursuant to sub-
section (a), incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for judicial review
of agency action, brought by or against the United States in any
court having jurisdiction of that action, unless the court finds that
the position of the United States was substantially justified or that
special circumstances make an award unjust.
12956 NRDC v. WINTER
A. Enhanced Fees
In Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991), we consol-
idated into a three-part test the relevant law governing what
must be proven in order to be awarded enhanced attorneys’
fees: (1) “the attorney must possess distinctive knowledge and
skills developed through a practice specialty;” (2) “those dis-
tinctive skills must be needed in the litigation;” and (3) “those
skills must not be available elsewhere at the statutory rate.”
Id. at 1496.
In this case, the Navy concedes that the senior in-house
attorneys at NRDC were entitled to enhanced fees due to their
experience in environmental litigation. The Navy argues,
however, that the junior NRDC in-house attorneys and the
Irell attorneys were not entitled to an enhanced fee due to
their limited experience in environmental litigation. The Navy
further asserts that any distinctive skills these attorneys pro-
vided were not “needed” in the litigation. Finally, the Navy
claims that NRDC failed to show that the skills provided by
the Irell and junior NRDC in-house attorneys were available
elsewhere at the statutory rate.
We first conclude that the Irell junior attorneys did not pos-
sess “distinctive knowledge and skills developed through a
practice specialty.” We thus hold that the district court should
not have awarded enhanced fees for their work on this case
and we therefore need not explore the Navy’s remaining
claims with respect to them. Because we conclude that both
the Irell senior partner and the NRDC junior attorneys did
possess distinctive knowledge and skills, we will examine the
Navy’s latter two claims with respect to them.
1. Practice Specialty
a. The Award of Enhanced Fees to Irell Junior Attor-
neys
[2] The EAJA allows for the award of attorneys’ fees
“based upon the prevailing market rates for the kind and qual-
NRDC v. WINTER 12957
ity of the services furnished,” capped at $125 per hour, “un-
less 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 proceedings involved, justifies a higher fee.”
28 U.S.C. § 2412(d)(1)(D)(2)(A) (emphasis added).
[3] In Pierce, 487 U.S. at 571, the Supreme Court exam-
ined the phrase “limited availability of qualified attorneys for
the proceedings involved” in the EAJA. The Court explained
that the statute contemplated attorneys qualified “in some spe-
cialized sense, rather than just in their general legal compe-
tence,” such that “attorneys hav[e] some distinctive
knowledge or specialized skill needful for the litigation in
question.” Id. at 572. Distinctive knowledge, in turn, may be
“an identifiable practice specialty such as patent law, or
knowledge of foreign law or language.” Id. Although a court
may find that other “special factors” counsel in favor of an
enhanced fee award, these special factors may not be “of
broad and general application.” Id. at 573. For example, the
Pierce Court concluded that the district court in that case had
abused its discretion by relying on broad factors such as the
“ ‘novelty and difficulty of issues,’ ‘the undesirability of the
case,’ the ‘work and ability of counsel,’ and ‘the results
obtained.’ ” Id. The Court concluded that consideration of
these factors was inappropriate because, as opposed to factors
demonstrating specialized knowledge or skill, these factors
merely reflected an “extraordinary level of the general
lawyerly knowledge and ability useful in all litigation.” Id. at
572.
Though the Pierce Court mentioned only patent law and
foreign law in its discussion of specialties, subsequent cases
in our circuit have recognized that other practice specialties
may qualify as “distinctive knowledge or skills” for which
enhanced fees are appropriate. See, e.g., Pirus v. Bowen, 869
F.2d 536, 541 (9th Cir. 1989). For example, in Pirus, we
affirmed an award of enhanced fees to attorneys who had
developed a social security practice specialty. Id. We rea-
12958 NRDC v. WINTER
soned that, like patent lawyers, they had “expertise with a
complex statutory scheme; familiarity and credibility with a
particular agency; and understanding of the needs of a partic-
ular class of clients — in this case, the elderly — and of how
those needs could best be met under the existing statute and
regulations.” Id. The attorneys had also litigated a similar case
“all the way to the Supreme Court.” Id.[4] With these principles in mind, we conclude that the dis-
trict court abused its discretion in awarding enhanced fees to
the junior Irell attorneys. Contrary to the requirements set
forth in Reilly and Pirus, the Plaintiffs never established that
these attorneys had a practice specialty at all, much less dis-
tinctive skills that were “needed in the litigation.”
Notwithstanding this deficiency, the district court analo-
gized the junior Irell attorneys to counsel in Pirus, and found
that the junior Irell attorneys here acquired distinctive skills
litigating a concurrent companion case before the same court,
involving similar factual and legal issues, on behalf of nearly
identical clients, and against the same agency, including some
of the same opposing counsel. The district court further found
that this experience provided Plaintiffs with unique skills and
knowledge unavailable elsewhere at the statutory rate.
[5] We do not agree with the district court’s reasoning.
Although the Supreme Court has not precisely enumerated
what may constitute a practice specialty or special factor, we
decline to expand these terms to encompass the degree of
expertise that the record indicates the junior attorneys may
have gained here from participating in the companion case.2
2
Indeed, some of our sister circuits read “special factor” more narrowly
than we do, allowing enhanced fees only where the specialities “requir[e]
technical or other education outside the field of American Law,” and not
on the basis of a practice specialty developed via litigation experience. In
re Sealed Case 00-5116, 254 F.3d 233, 235 (D.C. Cir. 2001) (quoting
Waterman S.S. Corp. v. Mar. Subsidy Bd., 901 F.2d 1119, 1124 (D.C. Cir.
NRDC v. WINTER 12959
We expect all attorneys to be experts of their own cases and
their clients’ litigation goals.
Having held that the Irell junior attorneys did not acquire
sufficiently distinctive skills merely by participating in litiga-
tion surrounding the companion case, we see no other basis
for awarding them enhanced fees. Although environmental lit-
igation may constitute an identifiable practice specialty, Plain-
tiffs must first establish that their counsel had such a
specialty. Animal Lovers Volunteer Ass’n, Inc. v. Carlucci,
867 F.2d 1224, 1226 (9th Cir. 1989), abrogated on other
grounds by Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir.
2001). Here, the record indicates that the junior Irell attorneys
had no experience in environmental law other than what they
gained in the concurrently litigated companion case.
[6] Plaintiffs also point to a variety of exigent circum-
stances surrounding the litigation in NRDC II. Specifically,
they argue that the time-sensitive circumstances created by
the Fourth of July weekend, the successful resolution of the
case in ten short days, and the government’s use of seventeen
attorneys in the case justify enhanced fees for all counsel.
This court has not yet addressed whether mere exigency sur-
rounding litigation is sufficient to warrant enhanced attor-
neys’ fees under the EAJA. The D.C. Circuit, however, has
concluded that even where the government creates an artifi-
cial emergency or where an appeal is expedited, this consider-
1990)); see also Former Employees of BMC Software, Inc. v. U.S. Sec’y
of Labor, 519 F. Supp. 2d 1291, 1346-53 (Ct. Int’l Trade 2007) (providing
an overview of the divergent interpretations of “special factor” across the
circuits). We do not believe it necessary to decide whether Pierce applies
only to purely technical areas outside of the law that require something
akin to separate credentials, but we do require that counsel demonstrate
some practice specialty needful to the litigation. Love, 924 F.2d at 1496;
Pirus, 869 F.2d at 541; accord Atl. Fish Spotters Ass’n v. Daley, 205 F.3d
488, 491 (1st Cir. 2000). Nevertheless, recognizing a single companion
case as a basis for distinctive knowledge would further widen this split.
12960 NRDC v. WINTER
ation is “insufficient” under the logic of Pierce to support a
statutory cap increase. Role Models Am., Inc. v. Brownlee,
353 F.3d 962, 969 (D.C. Cir. 2004).
[7] We agree with the reasoning of Role Models America
and hold that the exigency reflected in the record of this case
is an insufficient basis to find a “special factor.” “Producing
high-quality work on a short deadline hardly satisfies th[e]
standard” in Pierce of “work requiring specialized skills or
knowledge beyond what lawyers use on a regular basis.” Role
Models Am., 353 F.3d at 969. We intend no denigration of the
performance of counsel under time-sensitive and stressful
conditions, including that of Irell’s junior attorneys in this
case, but the work that was done here is similar to the “work
and ability of counsel” and “results obtained” that were
rejected as insufficient in Pierce. 487 U.S. at 573. We also
note that the Irell junior attorneys were aided by NRDC co-
counsel who specialize in public interest environmental litiga-
tion and who had one month of pre-filing preparation. That
junior counsel from Irell were able to work so quickly and
ably speaks to their general litigation skills and competence.
It is not, however, sufficient to qualify for an enhanced fee
award under the EAJA.
[8] In rejecting the district court’s decision to award
enhanced fees to the junior Irell attorneys, we are mindful that
facing a team of seventeen government attorneys is a daunting
task. However, we have previously held that “oppos[ing] the
enormous resources of the federal government adds nothing”
to our analysis because this disincentive to file suit is the very
reason that the EAJA awards fees to a prevailing party. Ani-
mal Lovers, 867 F.2d at 1227 (internal quotation marks and
citation omitted). Plaintiffs are not entitled to convert the very
rationale for awarding fees in the first instance into a reason
for awarding enhanced fees in their particular case. We thus
agree with the Navy that the junior Irell attorneys were not
entitled to enhanced fees and we reverse the district court’s
decision to the contrary.
NRDC v. WINTER 12961
b. Irell’s Senior Partner
[9] We conclude that the district court did not abuse its dis-
cretion in finding that the senior Irell attorney had the requi-
site degree of specialized experience required under Pierce.
The district court noted that the senior partner had previous
experience in a 1994 case involving similar environmental
law issues and possible damage to marine mammals resulting
from loud noises. While a finding of specialized experience
cannot, as previously noted, be based merely on counsel’s
work on the virtually contemporaneous companion case, we
think the district court’s determination that this earlier, addi-
tional litigation constituted sufficient prior experience to jus-
tify an enhanced fee award was reasonable.
c. The NRDC Junior Attorneys
[10] We similarly decline to disturb the district court’s
finding that the NRDC attorneys had the requisite “practice
specialty” for an enhanced fee award. The declarations and
resumes submitted by NRDC adequately establish that all the
NRDC attorneys, including the two junior attorneys, had
developed extensive knowledge in environmental law, and
specifically in the effects of sonar on marine mammals. The
two junior NRDC attorneys have co-authored journal articles
and spoken at several national and international fora on the
impact of noise on marine mammals, as well as served on a
variety of committees addressing this distinct issue.3
3
One NRDC junior attorney has graduated from law school, but has not
passed the bar. He currently serves as a full-time consultant for NRDC.
The Supreme Court has held that fees for paralegals are compensated as
a component of attorneys’ fees. Richlin Sec. Serv. Co. v. Chertoff, 128
S. Ct. 2007, 2013 (2008). By extension, this attorney may also recover
fees for his legal work, and he has reasonably requested lower rates than
an attorney of the same seniority who has passed the bar.
12962 NRDC v. WINTER
2. Whether Distinctive Skills Were Needful to the
Litigation
Under Love, Plaintiffs must also show that counsel’s dis-
tinctive knowledge and skills were “needful to the litigation”
in order to justify fees above the statutory cap. Love, 924 F.2d
at 1496. In considering whether Plaintiffs have met this stan-
dard, we note at the outset that this case involved more than
a straightforward application of the APA and the NEPA. Cf.
Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005)
(denying enhanced fees for an immigration attorney specializ-
ing in asylum law because the case at issue involved merely
a straightforward application of immigration law). To ade-
quately craft the complaint and negotiate a settlement agree-
ment under the circumstances of this case, counsel’s
knowledge of the Navy’s exercises in RIMPAC and the effect
of sonar on marine mammals was necessary. See Love, 924
F.2d at 1496 (attorney’s knowledge of the Federal Insecticide,
Fungicide and Rodenticide Act as well as familiarity with
areas of expert testimony necessary to obtain a preliminary
injunction on a short timeframe constituted distinctive knowl-
edge needful for litigation). In addition, the billing records
indicate that the junior NRDC attorneys worked both on pre-
paring the expert declarations and on possible mitigation mea-
sures.
[11] On these facts, and in light of the district court’s inti-
mate knowledge of the litigation and each attorney’s partici-
pation, we hold that the district court acted within its
discretion in finding that the distinctive skills of NRDC’s
attorneys and the Irell senior partner were needful to the liti-
gation.
3. Availability of Other Counsel
[12] The Navy further argues that even if Plaintiffs’ coun-
sel contributed distinctive skills needful to the litigation, they
have not met their burden of showing that no other suitable
NRDC v. WINTER 12963
counsel could be obtained at the statutory rate. The Navy cor-
rectly asserts that the burden rests on Plaintiffs to demonstrate
their entitlement to higher fees. Because the district court did
not place the burden on Plaintiffs, its decision must be
vacated and remanded for consideration consistent with this
opinion.
The district court found that “there is no evidence that
[attorneys with the necessary skills and knowledge] were
available elsewhere at the statutory rate,” and on the basis of
this finding concluded that Plaintiffs were entitled to a fee
award at the enhanced rate. Such a finding represents an error
of law. The burden of providing evidence that appropriate
counsel cannot be found at the statutory rate rests on the
plaintiff. United States v. 22249 Dolorosa St., 190 F.3d 977,
985 (9th Cir. 1999). In other words, the plaintiff must show
that the skills required are not available elsewhere at the statu-
tory rate; a mere absence of evidence to the contrary is insuf-
ficient.
To summarize, we remand this case to the district court for
reconsideration consistent with this opinion to determine
whether the Plaintiffs have met their burden of proof under
the third prong of Love. If not, the district court should recal-
culate fees for the Plaintiffs as required. On remand, the dis-
trict court should also recalculate fees for the junior Irell
attorneys at the statutory rate, plus a cost of living increase.
B. Limited Success
The Navy also argues that though Plaintiffs were the pre-
vailing party, they achieved only limited success, which
required the district court to reduce the number of hours for
which fees were awarded. With regard to this issue, we find
that the district court did not abuse its discretion in finding for
the Plaintiffs.
[13] In Hensley v. Eckerhart, 461 U.S. 424, 440 (1983), the
Court held that “the extent of a plaintiff’s success is a crucial
12964 NRDC v. WINTER
factor in determining the proper amount of an award of attor-
ney’s fees under 42 U.S.C. § 1988.” Thus,
[w]here a lawsuit consists of related claims, a plain-
tiff who has won substantial relief should not have
his attorney’s fee reduced simply because the district
court did not adopt each contention raised. But
where the plaintiff achieved only limited success, the
district court should award only that amount of fees
that is reasonable in relation to the results obtained.
Id. However, the fact that a settlement agreement does not
encompass all relief requested in the complaint does not pre-
clude a finding that a plaintiff has nevertheless obtained an
“excellent result.” Sorenson, 239 F.3d at 1147. “ ‘Where a
plaintiff has obtained excellent results, his attorney should
recover a fully compensatory fee.’ ” Id. (quoting Hensley, 461
U.S. at 435). We apply the analysis from Hensley to EAJA fee
awards. Sorenson, 239 F.3d at 1145 n.2.
In their complaint, Plaintiffs sought (1) a declaration that
the Navy was in violation of NEPA and MMPA; (2) vacatur
of NMFS’s Incidental Harassment Authorization and Finding
of No Significant Impact; (3) an injunction against the use of
mid-frequency active sonar during the RIMPAC exercises
unless the Navy complied with MMPA, NEPA, and APA; and
(4) an order directing the Navy to comply with NEPA and
MMPA in RIMPAC 2006 and future RIMPAC exercises.
According to the Navy, Plaintiffs obtained in a last-minute
settlement only a four-day TRO based on the NEPA claim
and a “modest settlement agreement that had little impact on
the Navy’s activities.” The Navy also argues that the district
court did not address the Navy’s argument regarding its claim
of limited success in its order awarding fees.
We find these arguments unpersuasive. Though Plaintiffs
initially sought injunctive relief under both NEPA and
MMPA prior to the invocation of the MMPA exemption, the
NRDC v. WINTER 12965
goal of the litigation (as articulated by NRDC) was “to ensure
that RIMPAC 2006 would not be conducted absent the
Navy’s adoption of significant additional measures to protect
marine life from the harm caused by exposure to high-
intensity mid-frequency military sonar.” In other words,
Plaintiffs sought to compel the Navy to adopt mitigation mea-
sures beyond those in the Incidental Harassment Authoriza-
tion.
Although Plaintiffs’ complaint contained a number of
alleged causes of action, the two statutory claims “involve[d]
a common core of facts” and were “based on related legal the-
ories,” Hensley, 461 U.S. at 435. Specifically, Plaintiffs’
entire litigation strategy was aimed at obtaining injunctive
relief to force a change in the Navy’s position. Thus, the dis-
trict court properly “focus[ed] on the significance of the over-
all relief obtained by the plaintiff in relation to the hours
reasonably expended on the litigation.” Id.[14] Where the relief sought is not monetary but injunctive
relief pursued in the public interest resulting in a settlement,
the “extent of success” cannot easily be measured. We note
that Plaintiffs’ litigation goal was not to ground the Navy’s
training exercises nor to impose such extreme mitigation mea-
sures as to effectively do so. The “excellent result” here was
the attainment of the TRO, which forced the Navy to settle so
it could proceed with its scheduled exercises. As the district
court stated, the “settlement advanced Plaintiffs’ goals in
bringing the suit and was not a ‘gratuitous act’ on the part of
the Navy.” In adopting mitigation measures, the Navy sub-
stantially changed its position by agreeing to implement or
modify several mitigation measures it had previously rejected.
Moreover, this was the first time the Navy had agreed to addi-
tional mitigation measures for use during mid-frequency
sonar exercises, a major victory for Plaintiffs.
The Navy further argues that the district court abused its
discretion by failing to address its argument that Plaintiffs
12966 NRDC v. WINTER
enjoyed only limited success. It correctly argues that in deter-
mining the fee award, “when confronted with an objection on
the basis of the limited nature of relief obtained by the plain-
tiff, the district court should make clear that it has considered
the relationship between the amount of the fee awarded and
the results obtained.” Cummings v. Connell, 402 F.3d 936,
947 (9th Cir. 2005) (internal quotation marks and citations
omitted).
However, our review of the district court’s order leads us
to conclude that the court adequately considered the relation-
ship between the relief obtained and the fee award. The dis-
trict court recognized that the successful TRO application was
a material factor in obtaining “a settlement that was agreeable
to all involved, allowing defendants to proceed with the naval
exercises so vital to our national security without causing
undue or unnecessary harm to marine life.” The court
declined to award fees for hours it found did not “ ‘directly
and substantially’ contribute[ ] to the attainment of their liti-
gation goals.” Though it did not recite the magic words “ex-
cellent result” or “level of success,” the order made clear that
the district court viewed the successful TRO and resultant set-
tlement as an “excellent result” for which fees were properly
awarded.
[15] We therefore hold that the district court did not abuse
its discretion in declining to reduce the fee award on the basis
of purportedly limited success, and we also conclude that the
court explained its decision to an extent adequate for appellate
review.
C. Fees on Appeal
Finally, relying on Ninth Circuit Rules 39-1.6(a) and 39-
1.8, and our decision in Cummings, 402 F.3d 936, the Navy
challenges the award of attorneys’ fees for work done on the
appeal of the TRO, arguing that Plaintiffs should have filed
for fees incurred on appeal in this court, not the district court.
NRDC v. WINTER 12967
Circuit Rule 39-1.6 stated in part, prior to a July 1, 2007
amendment:
Absent a statutory provision to the contrary, a
request for attorneys fees, including a request for
attorneys fees and expenses in administrative agency
adjudications under 28 U.S.C. § 2412(d)(3), shall be
filed with the Clerk, with proof of service, within 14
days from the expiration of the period within which
a petition for rehearing or suggestion for rehearing
en banc may be filed. If a timely petition for rehear-
ing or a suggestion for rehearing en banc is filed, a
request for attorneys fees shall be filed within 14
days after the court’s disposition of such petition or
suggestion. The request must be filed separately
from any cost bill.
Circuit Rule 39-1.8 allows parties to move to transfer attor-
neys’ fee motions on appeal to the district court or pertinent
administrative agency. In Cummings, we held that appellate
fees requested pursuant to 42 U.S.C. § 1988 must be filed
with the Clerk of the Ninth Circuit in the first instance, not
with the district court. 402 F.3d at 947-48. But see Twentieth
Century Fox Film Corp. v. Entm’t Distrib., 429 F.3d 869, 883
(9th Cir. 2005) (affirming an award of attorney’s fees pursu-
ant to 17 U.S.C. § 505 for work done on appeal).
[16] The EAJA, however, unlike the fee-shifting statutes —
42 U.S.C. § 1988 and 17 U.S.C. § 505 — states that “a court
shall award to a prevailing party other than the United States
fees and other expenses . . . incurred by that party in any civil
action . . . brought by or against the United States in any court
having jurisdiction of that action . . . .” 28 U.S.C.
§ 2412(d)(1)(A) (emphasis added). The plain language of the
statute indicates that the district court may properly award
fees for all levels of litigation. See also Jean, 496 U.S. at 159
(noting that “[s]ubsection (d)(1)(A) refers to an award of fees
‘in any civil action’ without reference to separate parts of the
12968 NRDC v. WINTER
litigation such as discovery requests, fees, or appeals”). “[T]o
the extent that Ninth Circuit Rule 39-1.6 is inconsistent with
the EAJA, the Circuit Rule is inapplicable, and the EAJA con-
trols.” Al-Harbi v. I.N.S, 284 F.3d 1080, 1082 (9th Cir. 2002);
accord Ninth Circuit Rule 39-1.6 (“Absent a statutory provi-
sion to the contrary [timing and filing provisions
apply]”(emphasis added)).
[17] Similar to the appellate fees affirmed in Twentieth
Century Fox, these fees were “ ‘incurred for services that con-
tribute[d] to the ultimate victory in the lawsuit’ ” as they were
incurred in defense of Plaintiffs’ TRO and the fees were thus
properly awarded. 429 F.3d at 884 (quoting Cabrales, 935
F.2d at 1052). We therefore hold that Plaintiffs’ application
for attorneys’ fees for the appeal of the TRO was properly
filed in the district court where final judgment was entered.
CONCLUSION
For the foregoing reasons, we affirm the district court’s
findings with regard to the success of Plaintiffs and the right
of the district court to rule on the Plaintiffs’ application for
attorney fees on the appeal of the TRO. However, we
VACATE the district court’s order and REMAND for further
fact finding and fee determinations consistent with this opin-
ion.
AFFIRMED IN PART, and VACATED and REMANDED
IN PART.
Each party shall bear its own costs.