Klamath Siskiyou Wildlands Cen v. Blm ( 2009 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    KLAMATH SISKIYOU WILDLANDS            
    CENTER; CASCADIA WILDLANDS
    PROJECT; UMPQUA WATERSHEDS,                  No. 08-35463
    Plaintiffs-Appellees,
    v.                            D.C. No.
    1:05-CV-03094-CL
    UNITED STATES  BUREAUOF LAND                  OPINION
    MANAGEMENT,
    Defendant-Appellant.
    
    Appeal from the United States District Court
    for the District of Oregon
    Owen M. Panner, District Judge, Presiding
    Argued and Submitted
    June 1, 2009—Portland, Oregon
    Filed December 15, 2009
    Before: Diarmuid F. O’Scannlain, Ferdinand F. Fernandez,
    and Raymond C. Fisher, Circuit Judges.
    16545
    16548    KLAMATH SISKIYOU WILDLANDS CENTER v. BLM
    COUNSEL
    Robert Lundman, United States Department of Justice, Wash-
    ington, D.C., argued the cause for appellant and submitted
    briefs. Brian Perron, Office of the Solicitor, Department of the
    Interior, Washington, D.C.; and Ronald J. Tenpas, Assistant
    Attorney General, Beverly F. Li, and Andrews C. Mergen,
    United States Department of Justice, Washington, D.C., were
    also on the briefs.
    Erin Madden, Cascadia Law P.C., Portland, Oregon, argued
    the cause for appellees and filed a brief. Marianne Dugan,
    Attorney, Eugene, Oregon, was also on the brief.
    OPINION
    O’SCANNLAIN, Circuit Judge:
    We must decide whether environmental organizations are
    prevailing parties within the meaning of the Equal Access to
    Justice Act when, before judgment, the Bureau of Land Man-
    agement withdraws its challenged decision to conduct a tim-
    ber sale.
    I
    Plaintiffs Klamath Siskiyou Wildlands Center, Cascadia
    Wildlands Project, and Umpqua Watersheds (“Klamath”)
    sued the Bureau of Land Management of the United States
    Department of the Interior (“BLM”), alleging that a planned
    timber sale in the Willy Slide area of the Medford District,
    among other decisions, violated the National Environmental
    Protection Act (“NEPA”), 
    42 U.S.C. § 4321
     et seq., and the
    Forest Lands Policy and Management Act (“FLPMA”), 
    43 U.S.C. § 1701
     et seq. Klamath sought “a preliminary injunc-
    tion; a declaration that the challenged decision violated cer-
    KLAMATH SISKIYOU WILDLANDS CENTER v. BLM         16549
    tain laws; a permanent injunction against the project until the
    BLM complied with those laws; and an award of costs and
    attorneys fees.”
    Klamath filed its complaint in October of 2005. The BLM’s
    own guidelines barred proceeding with the Willy Slide timber
    sale between October 15, 2005, and May 15, 2006, although
    a BLM official could waive this restriction. While cross-
    motions for summary judgment were pending before a magis-
    trate judge, the parties stipulated that the BLM would stay
    authorization of the sale until the magistrate judge made a rec-
    ommendation on the cross-motions and any objections had
    been resolved. The stay lasted only until May 15, 2006, at
    which point Klamath would have the option of moving for a
    preliminary injunction. The magistrate judge adopted this
    stipulation in January of 2006.
    Meanwhile, in a different lawsuit, the same plaintiffs had
    challenged, on similar grounds, two other timber sales that the
    BLM had proposed. On November 6, 2006, we decided in
    favor of Klamath in the appeal of that case. See Klamath Sis-
    kiyou Wildlands Ctr. v. Boody, 
    468 F.3d 549
     (9th Cir. 2006).
    At the time, the cross-motions for summary judgment were
    still pending in this case before the magistrate judge. The day
    after Boody came down, the magistrate judge filed Findings
    and Recommendations (“F&R”). The magistrate judge con-
    cluded that Boody was “directly on point” and that Klamath
    was “entitled to summary judgment” on some of its claims.
    That same day (November 7, 2006), the BLM on its own
    “vacated [its] earlier rulings and granted [Klamath’s] protest
    of the Willy Slide timber sale.” In a letter to Klamath, the
    BLM noted the objections to its previous decision, as well as
    “recent case law pertaining to similar activities and NEPA
    analysis.” The BLM stated that, in light of those two consider-
    ations, it would wait to award the Willy Slide sale “until such
    time that supplemental analysis and decision-making has been
    completed as appropriate.” It is unclear whether the BLM did
    16550     KLAMATH SISKIYOU WILDLANDS CENTER v. BLM
    this before or after it found out about the magistrate judge’s
    F&R.
    The BLM then moved to dismiss this case without preju-
    dice for lack of jurisdiction on the ground that it was either
    moot or unripe, objecting to the F&R on the same basis. The
    district court granted the motion to dismiss on both grounds.
    It concluded that the action was no longer ripe because Klam-
    ath’s “claims [were] contingent upon future events; the BLM
    may or may not proceed with [the Willy Slide timber sale].
    . . . If the BLM decides to offer the timber for sale again,
    [Klamath] will be able to challenge the sale and any under
    lying [sic] environmental documents.” Alternatively, the
    action was moot because the court “[could not] grant [Klam-
    ath] any effective relief as the [Willy Slide timber sale] deci-
    sion has been withdrawn and the [Annual Species Reviews1]
    have been held invalid [in Boody].”
    Klamath then moved for attorney’s fees and costs under the
    Equal Access to Justice Act (“EAJA”), 
    28 U.S.C. § 2412
    .
    Over the BLM’s objection, the district court granted the
    motion. The BLM timely appeals.
    II
    In this country litigants ordinarily must pay their own attor-
    ney’s fees, contrary to the rule that prevails in England. This
    “American rule” can change, but usually only by private
    agreement or statute. And indeed Congress has passed many
    statutes to allow parties who sue the United States to recover
    attorney’s fees in certain circumstances, but only if they were
    “prevailing parties” in the lawsuit. See Buckhannon Bd. v. W.
    Va. Dep’t of Health and Human Res., 
    532 U.S. 598
    , 600
    (2001).
    1
    These were decisions of the agency on which the timber sales at issue
    in this case and in Boody relied.
    KLAMATH SISKIYOU WILDLANDS CENTER v. BLM                   16551
    [1] One such statute is the Equal Access to Justice Act.2
    The term “prevailing party,” in this as in other statutes, is a
    term of art that courts must interpret consistently throughout
    the United States Code. 
    Id. at 603
    ; Perez-Arellano v. Smith,
    
    279 F.3d 791
    , 794 (9th Cir. 2002) (applying the Buckhannon
    definition of “prevailing party” to the EAJA); see also Sole v.
    Wyner, 
    127 S. Ct. 2188
    , 2194 (2007) (citing cases interpreting
    “prevailing party” language in various federal statutes). It
    means “a party in whose favor a judgment is rendered, regard-
    less of the amount of damages awarded.” Citizens for Better
    Forestry v. U.S. Forest Serv., No. 07-16077, slip op. at 6841,
    6847 (9th Cir. June 9, 2009) (quoting Buckhannon, 
    532 U.S. at 603
     (quoting Black’s Law Dictionary 1145 (7th ed.
    1999))).
    [2] This definition requires the party to have achieved “a
    material alteration in the legal relationship of the parties” that
    is “judicially sanctioned.” Buckhannon, 
    532 U.S. at 604-05
    (internal quotation marks omitted); Carbonell v. INS, 
    429 F.3d 894
    , 898 (9th Cir. 2005) (internal quotation marks omit-
    ted). The material alteration and the judicial sanction are two
    separate requirements. See Carbonell, 
    429 F.3d at 899
    .
    [3] The material alteration in the legal relationship of the
    parties must be relief that the would-be prevailing party
    sought, for “[r]espect for ordinary language requires that a
    plaintiff receive at least some relief on the merits of his claim
    before he can be said to prevail.” Hewitt v. Helms, 
    482 U.S. 755
    , 760 (1987). The form in which the relief comes is less
    important than that it be the relief the plaintiff sued to get.
    Thus, an order remanding a case to an administrative agency
    for further proceedings passes the Buckhannon test, where
    such a remand is what the plaintiff or petitioner sought. Li v.
    2
    The statute reads, 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 . . . brought by or against the United States
    . . . .” 
    28 U.S.C. § 2412
    (d)(1)(A).
    16552     KLAMATH SISKIYOU WILDLANDS CENTER v. BLM
    Keisler, 
    505 F.3d 913
    , 917-18 (9th Cir. 2007) (explaining that
    the prevailing parties had sought either to reopen removal
    proceedings or to obtain a remand for review of a specific
    legal claim). Even a voluntary stipulation, adopted by the dis-
    trict court, to stay deportation proceedings earns an immigrant
    petitioning for review “prevailing party” status, so long as the
    stay was the “primar[y] concern” of the case and secured the
    petitioner “much of the relief he [had] sought.” Carbonell,
    
    429 F.3d at 899-900
    .
    Whatever form it takes, the “material alteration” must con-
    sist of actual relief, not merely a determination of legal merit.
    “[A] favorable determination on a legal issue, even if it might
    have put the handwriting on the wall, is not enough by itself.”
    Better Forestry, No. 07-16077, slip op. at 6851. Poland v.
    Chertoff, 
    494 F.3d 1174
     (9th Cir. 2007), furnishes a vivid
    example of this rule. We upheld a post-trial judgment in favor
    of the plaintiff on one claim but reversed on another. 
    Id. at 1179-86
    . The damages award was based on the claim with
    respect to which we reversed the judgment, so we vacated the
    award and remanded for the plaintiff to seek a remedy. 
    Id. at 1186
    . We also vacated the district court’s award of attorney’s
    fees because the plaintiff had not won “any relief on the mer-
    its of his claim[ ],” even though he had “established his
    claim” as a matter of law and “on remand [could] seek redress
    for injuries suffered.” 
    Id. at 1187
    . Thus, the court must for-
    mally indicate that the plaintiff is entitled to some actual
    relief —legal or equitable relief3—in order to establish a
    material alteration. 
    Id.
     A moral victory, in other words, is not
    enough. See Hewitt, 
    482 U.S. at 761
    .
    Buckhannon also emphasized the necessity of a “judicial
    imprimatur.” 
    532 U.S. at 605
    . The lodestar of this require-
    ment is that “a plaintiff is [not] a ‘prevailing party’ if it [only]
    achieves the desired result because the lawsuit brought about
    3
    Certainly, if the plaintiff sought a declaratory judgment, such a judg-
    ment would also suffice.
    KLAMATH SISKIYOU WILDLANDS CENTER v. BLM          16553
    a voluntary change in the defendant’s conduct.” 
    Id. at 601
    (rejecting the so-called “catalyst theory”). Thus, Buckhannon
    concluded that the repeal of a statute the plaintiff had chal-
    lenged does not make the plaintiff prevailing. Even though the
    repeal “perhaps accomplish[ed] what the plaintiff sought to
    achieve,” it merely represents the “defendant’s voluntary
    change in conduct,” which lacks a judicial sanction or impri-
    matur. 
    Id. at 605
    . In short, the judicial sanction must be an
    enforceable entitlement to relief. It must “allow[ ] one party
    to require the other party to do something it otherwise would
    not be required to do.” Jankey v. Poop Deck, 
    537 F.3d 1122
    ,
    1130 (9th Cir. 2008) (internal quotation marks omitted). To
    receive what one sought is not enough to prevail: the court
    must require one’s opponent to give it.
    [4] All together, this case law establishes that the sine qua
    non of prevailing party status is an enforceable, judicially
    sanctioned award of much of the relief the plaintiff sought.
    See Better Forestry, No. 07-16077, slip op. at 6847 (“[A]
    party must have a judgment or something similar formally
    delivered in its favor to be considered ‘prevailing.’ ”); Carbo-
    nell, 
    429 F.3d at 900
    .
    III
    [5] Prevailing party status must always rest on a judicial
    sanction—typically an order of some kind—that materially
    alters the parties’ legal relationship. Therefore, the first ques-
    tion we must ask is, “what is the judicial order or sanction?”
    Here, the district court relied on three judicial acts to conclude
    that Klamath had prevailed: (1) the stipulated order staying
    the Willy Slide timber sale until May 15, 2006; (2) the magis-
    trate judge’s F&R; and (3) the district court’s own dismissal
    of the case for lack of subject-matter jurisdiction on the basis
    of the BLM’s voluntary withdrawal of the sale. We take each
    in turn.
    16554    KLAMATH SISKIYOU WILDLANDS CENTER v. BLM
    A
    The stipulated order is certainly judicially enforceable: it
    barred the BLM from authorizing the Willy Slide timber sale
    until May 15, 2006. Klamath relies on Carbonell for the prop-
    osition that an enforceable stipulation can support prevailing
    party status. But Carbonell grants no special status to stipula-
    tions. What mattered there was that the stay saved an other-
    wise imminently removable immigrant from deportation. This
    was “much of the relief he sought.” 
    429 F.3d at 900
    . Without
    the stay, the Immigration and Naturalization Service would
    have deported the immigrant in the ordinary course of affairs.
    
    Id. at 899
    .
    [6] By contrast, the stipulation here lacked both of these
    characteristics. It was not the relief, not even the preliminary
    injunction, for which Klamath sued. Judging by its complaint,
    Klamath did not file suit because it was afraid the BLM
    would exercise its discretion to proceed with the Willy Slide
    timber sale, despite the seasonal restrictions, in January
    instead of in May. Klamath sought a declaration that the sale
    was illegal and an injunction against it ever happening with-
    out the court’s permission. The stipulation was not even a
    stand-in for a preliminary injunction, for Klamath reserved
    the right to move for one on May 15, 2006.
    Furthermore, all the stipulation did here was to foreclose to
    the BLM what seems to have been an exception to the ordi-
    nary course, namely that agency’s discretion to waive the sea-
    sonal restriction on a timber sale. It was not like a preliminary
    injunction, which plaintiffs usually seek to prevent the defen-
    dant from doing something it would almost certainly have
    done otherwise. Although Klamath insists that there is no evi-
    dence that the seasonal restrictions normally apply, it is logi-
    cal to presume that they would. Cf. Gifford Pinchot Task
    Force v. United States Fish & Wildlife Serv., 
    378 F.3d 1059
    ,
    1071 (9th Cir. 2004). Thus, Carbonell is inapposite because
    the stipulation did not award Klamath “much of the relief [it]
    KLAMATH SISKIYOU WILDLANDS CENTER v. BLM                  16555
    sought” by preventing an imminent agency action. 
    429 F.3d at 900
    .
    [7] Although the stipulation altered the parties’ legal rela-
    tionship by preventing the BLM from doing something it oth-
    erwise was free to do, such alteration was not material in the
    context of the relief Klamath sought in this lawsuit. We there-
    fore conclude that the stipulation is not itself sufficient to con-
    fer prevailing party status.
    B
    [8] The second judicial act the district court pointed to was
    the magistrate judge’s F&R. A magistrate judge’s recommen-
    dations on motions for summary judgment are just that: rec-
    ommendations. They have no binding legal effect on the
    parties until the district court adopts them. See CHARLES ALAN
    WRIGHT ET AL., 12 FED. PRAC. & PROC. CIV. 2d § 3070.1
    (2009) (“It is fundamental that [a magistrate judge’s] recom-
    mendations do not become an order of the court until the dis-
    trict judge takes some action.”).4 An Article III judge may
    accept or reject them if the parties object, and he must review
    de novo the portions of the recommendations to which the
    parties object. See 
    28 U.S.C. § 636
    (b)(1)(C); Dawson v. Mar-
    shall, 
    561 F.3d 930
    , 932-33 (9th Cir. 2009). Here, the BLM
    objected. Regardless of what the BLM objected to, its objec-
    tion means that the F&R had no legal effect until the district
    court reviewed it. Thus, the F&R is not a court order that
    Klamath can enforce by seeking contempt or any other judi-
    cial remedy.
    4
    We note that there may be situations in which the decisions of the mag-
    istrate judge are indeed enforceable on their own. Examples might include
    the specific proceedings a magistrate judge is permitted to determine, see
    
    28 U.S.C. § 636
    (a) and (b)(1)(A), or when the parties consent to the full
    authority of the magistrate judge to order entry of judgment, see 
    id.
    § 636(c). We do not address such situations in this opinion, for they are
    not before us.
    16556     KLAMATH SISKIYOU WILDLANDS CENTER v. BLM
    C
    Finally, we consider the district court’s dismissal order.
    [9] The case was dismissed for lack of jurisdiction on the
    ground that Klamath’s claims had become either unripe or
    moot. Both defects indicate the absence of a constitutional
    claim or controversy because a court cannot grant any relief.
    See Ohio Forestry Ass’n v. Sierra Club, 
    523 U.S. 726
    , 732-33
    (1998) (noting that the ripeness requirement “protect[s] agen-
    cies from judicial interference until an administrative decision
    has been formalized and its effects felt in a concrete way by
    the challenging parties” (internal quotation marks omitted));
    Tur v. YouTube, Inc., 
    562 F.3d 1212
    , 1213 (9th Cir. 2009)
    (per curiam) (“The basic question in determining mootness is
    whether there is a present controversy as to which effective
    relief can be granted.”) (internal quotation marks omitted). As
    a matter of law and logic, the district court cannot have
    awarded Klamath any relief if it dismissed the case because
    it could not grant relief. And that is exactly what a dismissal
    on mootness or ripeness grounds means.
    [10] Klamath argues that the district court’s dismissal order
    was “premised on the court’s finding that the BLM was
    required to undertake certain actions before issuing a new
    timber sale.” Indeed, the court itself explained that its ruling
    was based “upon the BLM’s commitment to undertake (or not
    to take) certain specific actions.” Better Forestry, however,
    forecloses any argument that this finding confers prevailing
    party status on Klamath, because it was not accompanied by
    any ruling that Klamath was entitled to relief. See 567 F.3d
    at 1132-33. Thus, the district court’s order could not itself
    provide enforceable relief against the BLM.5
    5
    To be sure, the district court’s finding may well have become the law
    of the case, and the BLM may have been judicially estopped from pro-
    ceeding with the sale without conducting further analyses, having advised
    the district court it could not do so. See Hamilton v. State Farm Fire &
    KLAMATH SISKIYOU WILDLANDS CENTER v. BLM                  16557
    [11] The district court’s dismissal order judicially sanctions
    no change in the parties’ relationship because it does not and
    could not “allow[ ] one party to require the other party to do
    something it otherwise would not be required to do.” Jankey,
    
    537 F.3d at 1130
     (internal quotation omitted). Therefore, it is
    also insufficient to confer prevailing party status on Klamath.
    IV
    Undeterred, Klamath makes a novel argument. It reaches
    outside the confines of this lawsuit and claims our own deci-
    sion in Boody as the source of its prevailing party status in
    this case.
    [12] Klamath’s theory is that Boody drove the BLM to flee
    the field of battle because the agency knew it was “faced with
    imminent defeat.” In Boody, we invalidated the same Annual
    Species Review decisions that underlay the Willy Slide timber
    sale. 
    468 F.3d at 563
    . We also held that two other timber sales
    were unlawful because they relied on those decisions. 
    Id.
    Thus, one might suspect that, had BLM not beat its hasty
    retreat, Klamath would soon have prevailed on the strength of
    Boody.
    [13] Even if Klamath is right, however, that Boody assured
    it of victory, that is not enough to establish prevailing party
    status here. As we have recently reaffirmed, “a favorable
    determination on a legal issue, even if it might have put the
    Cas. Co., 
    270 F.3d 778
    , 782 (9th Cir. 2001) (“Judicial estoppel is an equi-
    table doctrine that precludes a party from gaining an advantage by assert-
    ing one position, and then later seeking an advantage by taking a clearly
    inconsistent position.”). However, the district court’s finding would not be
    judicially enforceable against the BLM unless Klamath initiated further
    proceedings, whether a separate lawsuit or motion to set aside the judg-
    ment of dismissal, and successfully invoked one of these legal doctrines
    to establish its entitlement to “some form of judicially-sanctioned relief.”
    Better Forestry, 567 F.3d at 1132.
    16558    KLAMATH SISKIYOU WILDLANDS CENTER v. BLM
    handwriting on the wall, is not enough by itself. A favorable
    judicial statement of law . . . cannot substitute for a form of
    judicial relief.” Better Forestry, No 07-16077, slip op. at 6851
    (internal quotation marks omitted).
    The district court was under the impression that Justice
    Scalia’s concurrence in Buckhannon (which Justice Thomas
    joined) changed the analysis. The court believed that Justices
    Scalia and Thomas, like the four dissenters who supported the
    catalyst theory, endorsed the view that a plaintiff is prevailing
    if “the very merit of [a plaintiff’s] claim led the defendant to
    capitulate before judgment.” 
    532 U.S. at 616
     (Scalia, J., con-
    curring). Counting these six votes, the district court consid-
    ered this view to be the law. Thus, it concluded that Klamath
    prevailed because the BLM capitulated after a legal decision,
    albeit in another case, revealed its legal position on the merits
    to be doomed.
    We are unpersuaded that Justice Scalia’s concurrence
    makes any difference. As a threshold matter, we note that the
    vote-counting the district court performed was out of place.
    There are certainly cases when there is no majority opinion
    and the plurality takes a legal position more far-reaching than
    the position of a concurring justice or justices. In such cases
    the narrowest view that commands a majority of justices is the
    law. See Marks v. United States, 
    430 U.S. 188
    , 193 (1977)
    (“When a fragmented Court decides a case and no single
    rationale explaining the result enjoys the assent of five Jus-
    tices, the holding of the Court may be viewed as that position
    taken by those Members who concurred in the judgments on
    the narrowest grounds.” (internal quotation marks omitted)).
    Buckhannon, however, is not such a case. Justice Scalia
    explicitly wrote his concurrence to amplify, not limit, the
    opinion of the Court, which was a majority, not a plurality,
    opinion. See Buckhannon, 
    532 U.S. at 610
     (“I join the opinion
    of the Court in its entirety, and write to respond at greater
    length to the contentions of the dissent.”).
    KLAMATH SISKIYOU WILDLANDS CENTER v. BLM                  16559
    Furthermore, when read in context Justice Scalia’s “very
    merit” remark does not endorse the district court’s approach.
    The difference “between the dissent’s outcome and the
    Court’s,” according to Justice Scalia, is this: “If the former
    sometimes rewards the plaintiff with a phony claim . . . , the
    latter sometimes denies fees to the plaintiff with a solid case
    whose adversary slinks away on the eve of judgment.” 
    Id. at 618
    . This case seems squarely within the second category: the
    BLM slinked away before the district court entered a judg-
    ment.
    [14] Finally, it does not alter the equation that Klamath and
    BLM were also the parties in Boody. Klamath argues that, if
    the BLM were to reinstate the Willy Slide timber sale, then
    Klamath could simply argue for collateral estoppel on the
    basis of Boody against the BLM and secure relief with little
    effort. Maybe, but it does not matter. Collateral estoppel
    would be available to Klamath even if it had never initiated
    this action. Its availability here is purely a function of the
    Boody litigation (for which Klamath did receive fees), and
    betokens no material alteration in the legal relationship of the
    parties vis-à-vis the Willy Slide timber sale. Collateral estop-
    pel is not a form of relief; it is the consequence in one case
    of relief ordered in a prior case.6
    In summary, we conclude that Klamath is not a prevailing
    party in this case because neither the stipulated order, the
    magistrate judge’s F&R, nor the binding ruling in Boody, a
    separate case, amounts to a “material alteration of the legal
    relationship of the parties” that is “judicially sanctioned,” as
    6
    Our judicial system operates through discrete legal cases. Parties must
    sue for particular relief, not to generate a good legal opinion they can cite
    in another case. To secure a decision for its preclusive effect is not the
    kind of relief that makes a cognizable controversy. Cf. Tur, 
    562 F.3d at 1213-14
     (holding that a litigant cannot save an appeal from being moot
    “on the grounds that resolving it might have a collateral estoppel or res
    judicata effect on pending litigation in another jurisdiction”).
    16560    KLAMATH SISKIYOU WILDLANDS CENTER v. BLM
    required in Buckhannon. 
    532 U.S. at 604-05
     (internal quota-
    tion marks omitted).
    V
    [15] For the foregoing reasons, the district court’s grant of
    attorney’s fees and costs to Klamath is REVERSED and
    VACATED. The case is REMANDED for further proceed-
    ings consistent with this opinion.