National Family Farm Coalition v. Usepa ( 2022 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATIONAL FAMILY FARM No. 19-70115
COALITION; CENTER FOR FOOD
SAFETY; CENTER FOR BIOLOGICAL
DIVERSITY; PESTICIDE ACTION ORDER
NETWORK NORTH AMERICA,
Petitioners,
v.
U.S. ENVIRONMENTAL PROTECTION
AGENCY; MICHAEL S. REGAN, in his
official capacity as Administrator,
Respondents,
MONSANTO COMPANY; E. I. DU PONT
DE NEMOURS AND COMPANY; BASF
CORPORATION,
Respondents-Intervenors.
On Petition for Review of an Order of the
Environmental Protection Agency
Argued and Submitted December 1, 2021
San Francisco, California
Filed March 17, 2022
2 NAT’L FAMILY FARM COALITION V. USEPA
Before: Michael Daly Hawkins, M. Margaret McKeown,
and William A. Fletcher, Circuit Judges.
Order
SUMMARY*
Equal Access to Justice Act
The panel denied in part petitioners’ request for attorneys’
fees under the Equal Access to Justice Act for petitioners’
work in connection with a successful petition for review
which challenged the Environmental Protection Agency’s
grant of temporary registrations for new dicamba pesticides
under the Federal Insecticide, Fungicide, and Rodenticide Act
(“FIFRA”).
The underlying petition sought review of a final decision
of an administrative agency that was not an appeal from a
decision by a tribunal within the agency. There was thus no
presumptive location within the Ninth Circuit where
petitioners’ argument should have been calendared.
Petitioners contend that their attorneys’ fees should be
calculated based on the market rates in San Francisco, where
their petition for review was calendared for oral argument.
The panel disagreed. The panel held that where, as here,
attorneys’ fees are incurred in connection with a petition for
review in this court under FIFRA, the presumptive relevant
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
NAT’L FAMILY FARM COALITION V. USEPA 3
community for calculating market rates is the legal
community where counsel are located and where they do the
bulk of their work.
The panel concluded that attorneys’ fees for petitioners’
three lead counsel located in Portland should be calculated
based on market rates in Portland. The panel referred
petitioners’ request to the Appellate Commissioner for further
proceedings.
COUNSEL
George A. Kimbrell (argued), Sylvia Shih-Yau Wu, and Amy
van Saun, Center for Food Safety, Portland, Oregon;
Stephanie M. Parent, Center for Biological Diversity,
Portland, Oregon; for Petitioners.
Miranda M. Jensen (argued), Sarah A. Buckley, and J. Brett
Grosko, Attorneys; Todd Kim, Assistant Attorney General;
United States Department of Justice, Environment & Natural
Resources Division, Washington, D.C.; Scott Garrison and
Camille Heyboer, Attorneys; United States Environmental
Protection Agency, Washington, D.C.; for Respondents.
ORDER
National Family Farm Coalition, Center for Food Safety,
Center for Biological Diversity, and Pesticide Action
Network North America (collectively, “Petitioners”) seek
attorneys’ fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d)(1)(A), for their work in
connection with their successful petition for review in this
4 NAT’L FAMILY FARM COALITION V. USEPA
court. Petitioners challenged the Environmental Protection
Agency’s (“EPA”) grant of temporary registrations for new
dicamba pesticides under the Federal Insecticide, Fungicide,
and Rodenticide Act (“FIFRA”). FIFRA requires that
petitions for review of post-hearing registration decisions be
brought in a court of appeals. See 7 U.S.C. § 136n(b). We
granted Petitioners’ petition for review and vacated the
registrations. Nat’l Fam. Farm Coal. v. EPA, 960 F.3d 1120,
1124–25 (9th Cir. 2020).
Petitioners contend that their requested attorneys’ fees
should be calculated based on the market rates in San
Francisco, where their petition for review was calendared for
oral argument. We disagree. We hold that where, as here,
attorneys’ fees are incurred in connection with a petition for
review in this court under FIFRA, the presumptive relevant
community for calculating market rates is the legal
community where counsel are located and where they do the
bulk of their work.
I. Background
The petition for review in this case challenged EPA’s
decision to issue temporary registrations under FIFRA for
three over-the-top (“OTT”) dicamaba herbicides. “FIFRA
provides for [direct] review in the courts of appeals ‘as to the
validity of any order issued by the Administrator [of the EPA]
following a public hearing’ by ‘any person who will be
adversely affected by such order and who had been a party to
the proceedings.’” Nat’l Fam. Farm, 960 F.3d at 1131
(quoting 7 U.S.C. § 136n(b)).
In the fall of 2016, after a notice-and-comment period, the
EPA granted two-year conditional registrations for three
NAT’L FAMILY FARM COALITION V. USEPA 5
closely related OTT dicamba herbicides. Id. at 1126, 1132.
Petitioners filed a petition for review of the registrations in
this court. The panel heard oral argument in Seattle, but the
registrations expired before we could rule on the petition. We
therefore dismissed the petition as moot. Nat’l Fam. Farm
Coal. v. EPA, 747 F. App’x 646, 647–48 (9th Cir. 2019).
In the fall of 2018, the EPA issued new temporary
conditional registrations to the same three herbicides. Nat’l
Fam. Farm, 960 F.3d at 1130. The same petitioners,
represented by the same attorneys, filed a new petition for
review raising essentially the same challenges to the new
registrations. Id. at 1124–30. The same panel heard oral
argument on this second petition on April 21, 2020. Oral
argument was calendared in San Francisco rather than Seattle.
However, no one actually appeared in San Francisco for the
argument. Because of the COVID-19 pandemic, oral
argument was conducted over Zoom, with all of the judges
and attorneys participating from separate remote locations.
We ruled on the second petition for review in June 2020,
holding that the 2018 registrations violated FIFRA. Id. at
1124. As prevailing parties, Petitioners now apply under
EAJA for $984,542.63 in attorneys’ fees, costs, and expenses.
EAJA awards fees based on the “prevailing market rates
for the kind and quality of the services furnished,” but
presumptively caps the rate for such fees at $125 per hour.
28 U.S.C. § 2412(d)(2)(A). EAJA permits the hourly rate to
exceed that cap based on “a special factor, such as the limited
availability of qualified attorneys for the proceedings
involved.” Id. A “special factor” is present if “some
distinctive knowledge or specialized skill” is needed for the
litigation in question, Pierce v. Underwood, 487 U.S. 552,
6 NAT’L FAMILY FARM COALITION V. USEPA
572 (1988), and if such knowledge or skill is not “available
elsewhere at the statutory rate,” Love v. Reilly, 924 F.2d
1492, 1496 (9th Cir. 1991). If a special factor is present,
counsel may be awarded attorneys’ fees at market rates that
exceed the statutory rate.
Petitioners seek attorneys’ fees at the market rate, and
EPA agrees that they are entitled to the market rate.
However, Petitioners and EPA disagree about the relevant
market in which the rate is to be determined.
Petitioners seek attorneys’ fees for all four of their lead
counsel at the prevailing market rate in San Francisco, where
the case was calendared for oral argument. However, only
one of the four is located in San Francisco. The other three
are located in Portland. The EPA contends that the relevant
market is where the counsel are located.
II. Discussion
EAJA provides in relevant part:
[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 (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
NAT’L FAMILY FARM COALITION V. USEPA 7
justified or that special circumstances make
an award unjust.
28 U.S.C. § 2412(d)(1)(A).
As both parties acknowledge, rates awarded under EAJA
must be reasonable. That is, they must be “adequate to attract
competent counsel, but . . . not produce windfalls to
attorneys.” Blum v. Stenson, 465 U.S. 886, 897 (1984)
(citation omitted). This requires, inter alia, that attorney fees
be “calculated according to the prevailing market rates in the
relevant community.” Id. at 895.
The choice of calendared location for Petitioners’ oral
argument was largely arbitrary. In cases dealing with appeals
from district court decisions, Ninth Circuit arguments are
typically calendared in a location near the district court. See
9th Cir. R. Court Structure and Procedures (C)(1). For
example, cases coming up from the Northern District of
California are typically calendared for argument in San
Francisco; cases coming up from the District of Arizona are
typically calendared for argument in Pasadena. Our general
rule in such cases is that “the relevant community [for
calculating market rates] is the forum in which the district
court sits.” Barjon v. Dalton, 132 F.3d 496, 500 (9th Cir.
1997).
In some of the cases dealing with petitions for direct
review of agency action, oral argument is typically scheduled
for a location near where the administrative hearing was held.
This is our practice for petitions for review of decisions of the
Board of Immigration Appeals, which hears appeals from
decisions of Immigration Judges. For example, in cases in
which the hearing before the Immigration Judge was in Los
8 NAT’L FAMILY FARM COALITION V. USEPA
Angeles, petitions for review are typically calendared for
argument in Pasadena.
However, the case before us fits into neither of these
categories. There was no district court decision, and there
was no hearing before an administrative judge from which an
appeal was taken to EPA. Instead, the petition sought review
of a final decision of an administrative agency that was not an
appeal from a decision by a tribunal within the agency. There
was thus no natural or presumptive location within the Ninth
Circuit where Petitioners’ argument should have been
calendared. This is illustrated by the fact that Petitioners
argued to our panel first in Seattle (in person) and then in San
Francisco (virtually).
Counsel has pointed us to, and our independent research
has revealed, no case law directly on point. In a non-
precedential fee order issued after a successful petition for
review under FIFRA from an EPA order, comparable to the
case now before us, our Appellate Commissioner awarded
attorneys’ fees to two counsel using San Francisco rates, even
though one of the counsel was based in Seattle. See
Pollinator Stewardship Council v. EPA, No. 13-72346, 2017
WL 3096105, at *5–*7 (9th Cir. June 27, 2017). However,
EPA had not objected to using San Francisco rates for both
counsel. In the absence of any objection, the Appellate
Commissioner assumed that San Francisco rates were
appropriate.
We therefore determine as a matter of first impression
whether the relevant community in a case where the only
attorneys’ fees at issue were incurred while arguing a direct
petition for review of an agency decision, with no
NAT’L FAMILY FARM COALITION V. USEPA 9
administrative appeal within the agency, is the location where
oral argument is calendared.
We hold that, in a petition for review under FIFRA, the
presumptive rate is the market rate in the location where
counsel have their office and do the bulk of their work in
connection with the appeal. We leave open the possibility
that circumstances in future cases may justify deviating from
this presumption. Here, however, we have no occasion to
consider such circumstances because in the present case no
circumstances exist suggesting that rates of a different legal
community would be appropriate.
We therefore conclude that attorneys’ fees for Petitioners’
three lead counsel located in Portland should be calculated
based on market rates in Portland. We refer Petitioners’
request to our Appellate Commissioner for further
proceedings consistent with this Order. After such
proceedings, the Appellate Commissioner will recommend to
our panel an award in an amount she deems appropriate.
SO ORDERED.