Sierra Club v. Gorsuch, s. 79-1565

Decision Date16 July 1982
Docket Number80-1201,80-1213 and 80-1338,Nos. 79-1565,80-1187,79-1719,79-1867,79-1874,s. 79-1565
Parties, 221 U.S.App.D.C. 450, 12 Envtl. L. Rep. 21,093 SIERRA CLUB, Petitioner, v. Anne M. GORSUCH, Administrator of the Environmental Protection Agency, Respondent, National Coal Association Alabama Power Association, et al., Intervenors.
CourtU.S. Court of Appeals — District of Columbia Circuit

Page 972

684 F.2d 972
17 ERC 2048, 221 U.S.App.D.C. 450, 12
Envtl. L. Rep. 21,093
SIERRA CLUB, Petitioner,
v.
Anne M. GORSUCH, Administrator of the Environmental
Protection Agency, Respondent,
National Coal Association Alabama Power Association, et al.,
Intervenors.
Nos. 79-1565, 79-1719, 79-1867, 79-1874, 80-1187, 80-1201,
80-1213 and 80-1338.
United States Court of Appeals,
District of Columbia Circuit.
July 16, 1982.
As Amended July 16, 1982.

Page 973

On Motion for Award of Attorneys' Fees.

Before ROBB, WALD and GINSBURG, Circuit Judges.

Opinion PER CURIAM.

Opinion dissenting in part filed by Senior Circuit Judge ROBB.

PER CURIAM:

In Sierra Club v. Gorsuch, 672 F.2d 33 (D.C.Cir.1982) (hereinafter Sierra Club II ), we held that an award of attorneys' fees to the Sierra Club and the Environmental Defense Fund ("EDF"), non-prevailing parties in Sierra Club v. Costle, 657 F.2d 298 (D.C.Cir.1981) (hereinafter Sierra Club I ), was "appropriate" under section 307(f) of the Clean Air Act 42 U.S.C. § 7607(f), because those parties had "substantially contributed" to the goals of the Clean Air Act Amendments of 1977 by litigating "important, complex and novel" issues of statutory interpretation. Sierra Club II, 672 F.2d at 39. At the express suggestion of the government, we postponed consideration of the precise amount of compensation to be awarded in order to allow the parties to resume negotiations which had been abruptly ended by a shift in government policy resulting in routine opposition to the grant of attorneys' fees to non-prevailing parties. Id. at 34 n.2. Unfortunately, a settlement has proven impossible. Accordingly, we must now resolve the matter. Taking into account the decisions of this court in National Association of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C.Cir.1982) (as amended July 15, 1982) (hereinafter NACV ); Environmental Defense Fund v. Environmental Protection Agency, 672 F.2d 42 (D.C.Cir.1982) (hereinafter EDF v. EPA ); Alabama Power Company v. Gorsuch, 672 F.2d 1, 33 (D.C.Cir.1982); Anderson v. United States Department of the Treasury, 648 F.2d 1 (D.C.Cir.1979); and, most important, Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980) (en banc ) (hereinafter Copeland ), we find that Sierra Club is entitled to attorneys' fees amounting to $44,715 (plus $644.60 in expenses 1) and that EDF is entitled to $45,874.80.

I. SIERRA CLUB'S REQUEST

Prior to the termination of fee negotiations in August, 1981, the government made a written offer of $32,265 to Sierra Club, which Sierra Club claims to have accepted before the government withdrew the offer under a revised policy of disputing all attorneys' fees claims by non-prevailing parties. Following our opinion in Sierra Club II, declaring that the Clean Air Act contemplated attorneys' fees awards in "appropriate" cases and holding Sierra Club I to be such a case, Sierra Club submitted a proposal for $60,656.75. This figure included Sierra Club's computation of the "lodestar"-"the number of hours reasonably expended multiplied by a reasonable hourly rate," Copeland, 641 F.2d at 891-on the basis of 479.5 hours at $110 per hour plus a 15% upward adjustment of the lodestar amount due to the government's alleged delaying tactics throughout the fee proceedings. See Sierra Club's Report To The Court And Second Amended Request For Attorneys' Fees at 2 (May 10, 1982) (hereinafter Sierra Club's Report). The government countered with an offer of $36,335, representing a reduction in hours and an hourly rate of $90 rather than $110 for time spent on the case-in-chief by the Sierra Club's attorney,

Page 974

Joseph Brecher. 2 See id. at Exhibit B. The government's figure, however, included the full 37 hours claimed for work on the attorneys' fees issue at $110 per hour. Id. The government predictably resisted any upward adjustment in the lodestar amount. Id. Sierra Club's final counteroffer, which was refused, was for 459.5 hours at $110 or $50,545.

Now Sierra Club requests $106,590 (and litigation costs of $2,642.96) based upon a lodestar of 484.5 hours (an additional 5 hours having been spent on fee negotiations) at $110 per hour, or $53,295, supplemented by a 50% upward adjustment for "exemplary" quality of representation and the public benefit conferred, and an additional 50% for delay in receipt of payment. The three main points of contention between Sierra Club and the government are: number of compensable hours, rate of pay for Brecher's time and the percentage of upward adjustment, if any.

A. Number of Hours

The government argues that Sierra Club's claim of 442.5 hours for work on the judicial aspect of its case-in-chief impermissibly includes non-litigation related activities as well as excessive hourly claims for certain litigation related activities. Specifically, approximately 67 hours for which Sierra Club seeks compensation were devoted to preparation of its administrative petition for reconsideration. The government correctly objects to these hours based upon our holding in Sierra Club II, which states: "the same statutory language that allows us to make attorneys' fees awards in cases such as Sierra Club (I ), limits our power to judicial awards .... Sierra Club and EDF are, therefore, not entitled to an award of attorneys' fees for their participation in the administrative proceedings preceding their appeal." 672 F.2d at 42. Sierra Club's claim for these 67 hours is...

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9 cases
  • Laffey v. Northwest Airlines, Inc.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • September 28, 1984
    ...... Similarly, in Sierra Club v. Gorsuch, 684 F.2d 972, 975 (D.C.Cir.1982) (per curiam ), rev'd on ......
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    ...... The Court of Appeals agreed with respondents, ultimately awarding some $45,000 to Sierra Club and some $46,000 to EDF. Sierra Club v. Gorsuch, 672 F.2d 33 (CADC 1982); 684 F.2d 972 (CADC 1982). We granted certiorari, --- U.S. ----, 103 S.Ct. 254, 74 L.Ed.2d 198 (1982), to consider the ......
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    ......In Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983), the Supreme ... See id., rev'g Sierra Club v. Gorsuch, 672 F.2d 33, 41 (D.C.Cir.1982) (holding that award of fees was ......
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    ...... affiliated with any public organization, such as the NAACP or the Sierra Club, would allow their respective organizations to obtain an indirect ...See id. at 284-85. Similarly, in Sierra Club v. Gorsuch, 684 F.2d 972 (D.C. Cir. 1982), the Sierra Club was awarded prevailing ......
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