International Center for Technology Assessment v. Veneman ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
INTERNATIONAL CENTER FOR
TECHNOLOGY ASSESSMENT, et al.,
Plaintiffs,
v. Civil Action 03-00020 (HHK)
TOM VILSACK, Secretary, United
States Department of Agriculture, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
Before the court is plaintiffs’ motion for the attorneys’ fees and costs they have incurred
in prosecuting this lawsuit brought under the Plant Protection Act (“PPA”) and National
Environmental Policy Act (“NEPA”) [#106]. This motion was referred to Magistrate Judge Alan
Kay for his report and recommendation pursuant to LCvR 72.3. The Magistrate Judge
recommended that plaintiffs’ motion be granted and that plaintiffs be awarded $59,384.27 in
attorneys’ fees and costs, which represents a portion of the amount they seek. Report and
Recommendation at 18 [#112]. Plaintiffs object to two specific aspects of the Report and
Recommendation and argue that they should be awarded $98,306.04 in attorneys’ fees and costs.
Upon consideration of plaintiffs’ motion, defendants’ opposition, the Report and
Recommendation, plaintiffs’ objection thereto, and defendants’ response to plaintiffs’ objection,
the court concludes that plaintiffs’ objection to the Report and Recommendation has some merit,
and that plaintiffs are entitled to fees and costs in the amount of $85,141,24.
I. BACKGROUND
Organizational plaintiffs International Center for Technology Assessment, Center for
Food Safety, and Klamath Siskiyou Wildlands Center, along with five individual plaintiffs,
brought an action for declaratory and injunctive relief against three government defendants, Tom
Vilsack, Secretary of the Department of Agriculture, Cindy Smith, Administrator of the Animal
and Plant Health Inspection Service (“APHIS”), and Alan Tasker, Program Manager of the
Noxious Weeds Program, each in their official capacities.1 Plaintiffs alleged that APHIS acted
arbitrarily and capriciously when it: (1) denied their petition to have certain genetically
engineered (“GE”) varieties of grasses listed as noxious weeds under the PPA; (2) permitted a
variety of field tests of GE creeping bentgrass to be conducted across the country without
adequately determining whether GE creeping bentgrass was a “plant pest” pursuant to PPA
implementing regulations; and (3) permitted a variety of field tests of GE creeping bentgrass to
be conducted without preparing an Environmental Impact Statement or Environmental
Assessment pursuant to NEPA.
The parties filed cross-motions for summary judgment; the court granted summary
judgment in favor of plaintiffs on their first and third claims, vacating and remanding defendants’
denial of plaintiffs’ petition. With respect to the first claim, the court held that APHIS used an
improper consideration – namely, whether a plant species is “new or not known to be widely
prevalent” – when it determined that GE varieties of creeping bentgrass and Kentucky bluegrass
were not noxious weeds under the PPA. As to the third claim, the court held that APHIS’s
1
Under Rule 25(d)(1) of the Federal Rules of Civil Procedure, Secretary of Agriculture
Tom Vilsack has been substituted for former Secretary Mike Johanns, and Administrator of
APHIS Cindy Smith has been substituted for former Administrator Bobby Accord.
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failure to determine whether the field tests had the potential to significantly affect the quality of
the human environment under NEPA was arbitrary and capricious. Regarding the second claim,
however, while the court expressed concern about APHIS’s interpretation of its regulation
(which interpretation allowed APHIS to rely on states to make the determination of whether
something is a noxious weed in the area of release instead of requiring APHIS to perform an
independent evaluation), it held that APHIS’s interpretation was not plainly erroneous.
Having prevailed on the merits of their first and third claims, plaintiffs moved for an
award of attorneys’ fees and costs under the Equal Access to Justice Act. The court referred the
motion to Magistrate Judge Alan Kay for his report and recommendation pursuant to LCvR 72.3.
Applying the Equal Access to Justice Act, which provides that “a court shall award to a
prevailing party other than the United States fees and other expenses . . . unless the court finds
that the position of the United States was substantially justified,” 28 U.S.C. § 2412(d)(1)(A),
Magistrate Judge Kay concluded that the government’s position was not substantially justified
with respect to plaintiffs’ first and third claims; therefore, the Magistrate Judge recommended
that plaintiffs be awarded fees and other expenses. Report and Recommendation at 8. The
Magistrate Judge then calculated the lodestar, which is the number of hours reasonably expended
on the litigation multiplied by the reasonable hourly rate, and determined that, prior to any
adjustments, plaintiffs should be awarded $87,765.33 in attorneys’ fees and $1,311.08 in costs.
Id. at 8-13.
The Magistrate Judge then turned to defendants’ arguments that there were grounds for
reducing the lodestar, and found that some of defendants’ arguments had merit. Following
Supreme Court precedent, the Magistrate Judge considered “the important factor of ‘results
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obtained.’” Id. at 13 (citing Hensley v. Eckerhart, 461 U.S. 424, 434 (1983)). Hensley held that
if “a plaintiff has achieved only partial or limited success,” on a claim that is unrelated to the
claims on which he succeeded, the lodestar figure may be an excessive amount, and the court
may “reduce the award to account for the limited success.” Hensley, 461 U.S. at 436-37.
Concluding that plaintiffs’ second and third claims “alleged violations of different regulations
and statutes,” the Magistrate Judge concluded that plaintiffs’ second claim was not related to
their first and third claims and therefore plaintiffs’ award should be reduced. Report and
Recommendation at 16. The Magistrate Judge recommended a reduction of one-third to account
for plaintiffs’ limited success. He acknowledged that the Supreme Court had rejected “a
mathematical approach to comparing the total number of issues in the case with those actually
prevailed upon,” but concluded that a more nuanced approach was not realistic in this case as
plaintiffs had not recorded the time they spent by claim. Report and Recommendation at 16
(citing Hensley, 461 U.S. at 435 n.11). Finally, the Magistrate Judge concluded that defendants’
argument that the fee should also be reduced to reflect plaintiffs’ failure to obtain injunctive
relief did not have merit.
II. ANALYSIS
Plaintiffs object to the Magistrate Judge’s Report and Recommendation for two reasons.
First, they argue that the Magistrate Judge should not have reduced their fees because they did
not prevail on one of their claims as that claim was indeed related to the others. Second,
plaintiffs argue that even if the Magistrate Judge was correct to reduce their fees to reflect their
lack of success on one claim, the one-third reduction was excessive because the docket and
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briefing show that plaintiffs did not devote one-third of their time to this claim. The court will
address each argument in turn.
The Supreme Court has held that where a plaintiff succeeds on only some of his claims,
“two critical questions must be addressed. First, did the plaintiff fail to prevail on claims that
were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of
success that makes the hours reasonably expended a satisfactory basis for making a fee award?”
Hensley, 461 U.S. at 434. The Court went on to explain that in some cases “a plaintiff may
present in one lawsuit distinctly different claims for relief that are based on different facts and
legal theories” and that in such a case the work on one claim will be unrelated to the work on the
others, and so the work on the unsuccessful claim cannot be deemed to have been expended in
pursuit of the ultimate result. Id. at 434-35. Where plaintiffs’ claims for relief involve “a
common core of facts or will be based on related legal theories,” however, much of counsel’s
time “will be devoted generally to the litigation as a whole” and the focus should be on the
significance of the overall relief obtained. Id. Thus, the critical question is whether the claims
are related. The Court of Appeals for the District of Columbia has held that where “[e]ach issue
involves a particular substantive concern of the petitioners with a particular aspect of [an
agency’s] regulations,” and “different policy rationales and statutory provisions set forth by the
agency” support the agency’s decision on those issues, the claims are legally distinct. Sierra
Club v. EPA, 769 F.2d 796, 803 (D.C. Cir. 1985); see also Kennecott Corp. v. EPA, 804 F.2d
763, 765 (D.C. Cir. 1986).
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Citing Sierra Club, the Magistrate Judge concluded that plaintiffs’ claims were not
related. In their objection, plaintiffs argue that the Magistrate Judge ignored the similarity in the
factual basis of their second and third claims. Both claims, according to plaintiffs, stem from the
same common core of facts, “that the [U.S. Department of Agriculture] APHIS arbitrarily and
capriciously approved the field tests of [GE creeping bentgrass] because it ignored the potential
environmental risks of [GE creeping bentgrass], including and specifically the potential
weediness of [GE creeping bentgrass].” Pls.’ Obj. to Rep. and Rec. at 5. Defendants rejoin that
plaintiffs’ second and third claims involve a particular substantive concern with a particular
agency action and involve different statutes and regulations, and therefore plaintiffs cannot
distinguish Sierra Club. Defendants are correct.
The court concludes that Sierra Club dictates the result in this case. In Sierra Club,
environmentalists had sought review of two EPA regulations regarding how emissions
limitations for sources of pollution would be calculated. Sierra Club, 769 F.2d at 802.
Responding to concerns that sources of pollution were merely increasing the height of their
stacks to meet air quality standards, Congress mandated that emissions limitations be calculated
as if the stacks were no higher than that height dictated by good engineering practices. Id.Environmentalists challenged two of the three methods by which the EPA proposed to calculate
stack height, including challenging the fact that the EPA’s formula did not take into account
plume rise (the tendency of air propelled upwards to continue rising) and the fact that the EPA’s
formula allowed sites to calculate the stack height as though there were nearby terrain obstacles
that would cause plume impaction (i.e., would cause pollution to collect) even when there were
not. The Court of Appeals held that the EPA was arbitrary and capricious with respect to plume
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impaction, but was not arbitrary and capricious with respect to plume rise. Id. at 804-5. In
determining that plaintiffs in that case should be awarded attorneys’ fees for their work on the
plume impaction issue, but not the plume rise issue, the court necessarily concluded that these
two claims were unrelated. Id. at 804. This court cannot discern how plaintiffs’ second and third
claims in the instant case, which involve different statutes and different policy rationales, are
more related than the claims in Sierra Club. Therefore, the court adopts the Magistrate Judge’s
recommendation that plaintiffs’ fee award should be reduced due to lack of success on their
second claim.
Turning to the amount of the reduction, however, the court concludes that the amount
recommended by the Magistrate Judge is too great. The rationale for reducing the fee is that
plaintiffs’ should not be compensated for their work on an unsuccessful claim. The Magistrate
Judge recommended that plaintiffs’ fee should be reduced by one-third because plaintiffs did not
prevail on one-third of their claims. While acknowledging that the Supreme Court has rejected
“a mathematical approach comparing the total number of issues in the case with those actually
prevailed upon,” the Magistrate Judge concluded that a more nuanced approach was not realistic
in this case because plaintiffs did not keep their time records by claim. Report and
Recommendation at 16 (citing Hensley, 461 U.S. at 435 n.11).
Plaintiffs object, arguing that the court may take a more nuanced approach by examining
the docket and briefing record, which support the conclusion that they spent less than one-third
of their time on their second claim. Plaintiffs argue that the docket shows that they spent many
hours working on issues beyond the scope of their claims (including defending standing), and
that far less than one-third of the pages in their briefing were devoted exclusively to their second
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claim. APHIS rejoins that plaintiffs’ time records do not indicate how their attorneys’ time was
broken down, and that where this is the case courts have used a proportional reduction. APHIS
argues that plaintiffs’ approach would place a disproportionate burden on both the court and
defendants to rectify plaintiffs’ own shortcoming.
The Supreme Court has indicated that district courts have considerable discretion in
determining a fee award, stating: “There is no precise rule or formula for making these
determinations. The district court may attempt to identify specific hours that should be
eliminated, or it may simply reduce the award to account for the limited success. The court
necessarily has discretion in making this equitable judgment.” Hensley, 461 U.S. at 437. Based
on this court’s experience with this case, it concludes that a reduction of one-third to account for
the time plaintiffs spent on their unsuccessful second claim is excessive. Plaintiffs spent a good
deal of time defending standing and working on other issues not directed to any of the three
claims specifically, but which was necessary to plaintiffs’ successes on their first and third
claims.2 Therefore, the court concludes that it is more appropriate to reduce plaintiffs’ fee by
fifteen percent to reflect the effort they expended on their unsuccessful second claim. This
results in an award of $74, 600.53 in attorneys’ fees and $1,311.08 in costs.
Plaintiffs further seek reasonable fees for the hours expended working on their objections
and reply to defendants’ response to their objections in the amount of $9,229.63. Defendants do
not respond to this request. The court concludes that work performed in connection with
2
The court notes that plaintiffs requested $23,295.43 for their work on their motion for
attorneys’ fees, Pl.’s Mot. for Atty’s Fees at 22, a request that the Magistrate Judge concluded
had merit and included in the lodestar, Report and Recommendation at 11. None of the time
plaintiffs spent preparing their motion for attorneys fees, of course, was devoted to arguing the
merits of plaintiffs’ second claim.
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objecting to the Magistrate Judge’s Report and Recommendation, like work performed in
connection with a motion for award of attorneys’ fees and costs is compensable. See Sierra
Club, 769 F.2d at 811 (noting that hours reasonably expended in preparing a fee petition are
compensable); see also, e.g., Coleman v. District of Columbia, 2007 WL 1307834, at *2-3
(D.D.C. May 3, 2007) (awarding “fees on fees”). Plaintiffs’ assertion of the amount of time
spent on the objections is well-documented and reasonable. Therefore, the court awards an
additional $9,229.63 in attorneys’ fees for the preparation of plaintiffs’ objections and reply to
defendants’ response to plaintiffs’ objections.
III. CONCLUSION
For the foregoing reasons, it is this 18th day of March 2009, hereby
ORDERED that plaintiffs’ motion for attorneys’ fees and costs is GRANTED in the
amount of $83,830.16 in attorneys’ fees and $1,311.08 in costs.
Henry H. Kennedy, Jr.
United States District Judge
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