Save Our Cumberland Mountains, Inc. v. Hodel, 85-5984

Citation826 F.2d 43,263 U.S.App.D.C. 409
Decision Date14 October 1987
Docket NumberNo. 85-5984,85-5984
Parties, 18 Envtl. L. Rep. 20,024 SAVE OUR CUMBERLAND MOUNTAINS, INC., et al. v. Donald P. HODEL, Secretary of the Interior, et al., Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-02238).

John Alan Bryson, Atty., Dept. of Justice, with whom Robert Lawrence Klarquist, Atty., Dept. of Justice, Washington, D.C., was on the brief for appellants.

Joseph A. Yablonski, with whom L. Thomas Galloway, Washington, D.C., was on the brief for appellees. Daniel B. Edelman, Washington, D.C., entered an appearance for appellees.

Before WALD, Chief Judge, and GINSBURG and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge BORK.

Concurring opinion filed by Circuit Judge RUTH BADER GINSBURG.

Opinion concurring in part and dissenting in part filed by Chief Judge WALD.

BORK, Circuit Judge:

This is an appeal from an award of attorneys' fees and expenses under the Surface Mining Control and Reclamation Act of 1977. The government challenges four parts of the district court's award: the reasonableness of the hourly rates, the reasonableness of the number of hours, the propriety of two upward multipliers used in computing the ultimate fee award, and the award of non-taxable costs as expenses. We affirm the award as to the number of hours and the award of non-taxable costs, but reverse as to the hourly rates in the award, the award of a multiplier for exceptional results obtained, and the award of a multiplier for the risk of non-payment.

I.

Plaintiffs brought suit originally in September 1981, invoking section 520(a) of the Surface Mining Control and Reclamation Act ("SMCRA"), 30 U.S.C. Sec. 1270(a) (1982), the "citizens' suit" provision. The suit alleged that the Secretary of the Interior had improperly failed to enforce the SMCRA against operators who had unlawfully invoked a statutory exemption from the SMCRA's coverage, 30 U.S.C. Sec. 1278(2) (1982), and that the Secretary's suspension and withdrawal of a rule interpreting that exemption had violated the Administrative Procedure Act ("APA"). The district court dismissed the challenge to the Secretary's failure to enforce the SMCRA for lack of venue under 30 U.S.C. Sec. 1270(c) (1982), and dismissed the APA claim as rendered moot by a supervening rule newly interpreting the exemption. A panel of this court affirmed the dismissals on appeal, resolving a conflict between the district court decision in this case and another district court decision that had reached the opposite conclusion as to venue. Thereafter, the full court vacated the panel's opinion and agreed to rehear the venue issue en banc. Before rehearing, the parties settled the issues on appeal. The case was then remanded to the district court, where the Secretary waived the venue defense and the parties reached a final settlement of the action on the merits.

Plaintiffs then applied to the district court for an award of attorneys' fees and costs pursuant to 30 U.S.C. Sec. 1270(d) (1982), which states in part:

The court, in issuing any final order in any action brought pursuant to [30 U.S.C. Sec. 1270(a) ], may award costs of litigation (including attorney and expert witness fees) to any party, whenever the court determines such award is appropriate.

The government opposed the application, largely on the grounds also urged to this court. The district court awarded plaintiffs $147,670.96 in fees and costs. 1 Save Our Cumberland Mountains v. Hodel, 622 F.Supp. 1160 (D.D.C.1985).

On the question of hourly rates for each of plaintiffs' attorneys in the litigation, the district court found that the rates of $150 per hour for attorneys Yablonski and Galloway, and $110 for attorney Bishop, a colleague of Galloway's, were "reasonable and within the bracket of prevailing rates within this community for similar work." 622 F.Supp. at 1165. In contrast, the district court allowed a rate of $125 per hour for attorney Edelman because this was "his customary billing rate." Id. The district court indicated through these findings its apparent belief that attorneys Yablonski, Galloway and Bishop had no customary billing rate. Finally, the district court without discussion accepted as "fair and reasonable" the $30 per hour rate proposed by plaintiffs for counsel's paralegals and law clerks. Id.

The district court also found that all the hours claimed by the plaintiffs' four attorneys were compensable. 622 F.Supp. at 1164. In particular, the district court rejected the government's contention that since the Secretary's supervening rule mooted the APA claim, all hours spent on that claim in the suit should be disallowed; it held instead that the time spent on the APA claim was compensable since the suit on that claim was a "catalyst" that prompted the Secretary's issuance of the new rule. Id. at 1163. The district court also found that the hours spent on the petition to this court for rehearing en banc were compensable, thereby rejecting the government's argument that this time was a needless duplication of time spent in a companion case before this court raising the same venue issue. Id. at 1164.

Having determined the two principal elements required to compute the attorney's fee award, the district court went on to allow two upward multipliers to this amount. First, the court allowed a 10% increase in compensation for all the hours expended prior to remand to account for the "substantial" risk that plaintiffs' counsel would receive no compensation at all for their work on this litigation. The court based this award on the high "degree of difficulty the plaintiffs faced in having their case heard at all in this district, much less prevailing on all the issues." 622 F.Supp. at 1166. Second, the district court granted a 50% increase in compensation for the hours spent on the rehearing petition, finding that counsel's success in obtaining rehearing en banc by this court of a unanimous panel decision was "most certainly an exceptional result." Id. at 1166-67.

Finally, the district court allowed all of counsel's costs and expenses, deeming them reasonable in amount and of the type "routinely passed on to clients." 622 F.Supp. at 1167.

II.
A.

The attorney's fee statute before us does not expressly require that a party "prevail" to receive an award of fees, nor does it require that the award be "reasonable"; instead, it simply empowers the court to award fees to "any party, whenever the court determines such award is appropriate." 30 U.S.C. Sec. 1270(d) (1982). Nonetheless, the Supreme Court has found that an identically worded fee statute in the Clean Air Act, 42 U.S.C. Sec. 7604(d) (1982), should be interpreted in accord with the more abundant jurisprudence addressing the attorney's fee provision in the Civil Rights Act, 42 U.S.C. Sec. 1988 (1982), and other statutes that award a "reasonable" attorney's fee to a "prevailing" party. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, --- U.S. ----, 106 S.Ct. 3088, 3096, 92 L.Ed.2d 439 (1986) (Delaware Valley I ). See id. 106 S.Ct. at 3095-96 ("nearly identical" purposes of Sec. 7604 and Sec. 1988 suggest that similar interpretation appropriate). Specifically, the Court applied to the statute the "lodestar" approach developed for judicial determination of a "reasonable" attorney's fee: for each attorney the court compounds a reasonable hourly rate with the number of hours reasonably spent on the litigation to arrive at a "lodestar" (the presumptively reasonable fee), which the court may then adjust if necessary in particular situations. Id., 106 S.Ct. at 3096-3100.

Thus, we are bound to apply the lodestar approach to the fee request before us. See also Ruckelshaus v. Sierra Club, 463 U.S. 680, 682 n. 1, 103 S.Ct. 3274, 3276 n. 1, 77 L.Ed.2d 938 (1983) (noting identity of 42 U.S.C. Sec. 7607(f) with, inter alia, 42 U.S.C. Sec. 7604(d) and 30 U.S.C. Sec. 1270(d) and stating that interpretation of statutory term "appropriate" is same in each statute). Our review of the district court's fee award is restricted to the questions of whether the district court applied improper legal standards or abused its discretion. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983); Copeland v. Marshall, 641 F.2d 880, 901 (D.C.Cir.1980) (en banc). We first address the government's challenge to the hourly rates approved by the district court.

B.

The government challenges on two grounds the district court's finding that the $150 hourly rate proposed by plaintiffs for Yablonski and Galloway was reasonable and suggests instead a rate of $100 per hour. First, the government argues, contrary to the district court's apparent conclusion, that Yablonski and Galloway each had a customary billing rate of approximately $100 per hour. Second, the government argues that even if the two attorneys had no such billing rate, the market rate for comparable attorneys in the Washington market was not $150 per hour but $100 per hour.

The question of how to select a reasonable hourly rate for an attorney's fee award was settled in broad terms by the Supreme Court in Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). In Blum, which involved a statutory fee request by salaried Legal Aid Society attorneys, the Court held that the prevailing market rate for similar legal services by comparable lawyers in the community provides the proper measure of the hourly rate for fee applicants. Id. at 892-96, 104 S.Ct. at 1545-47. The Court further noted that "the rates charged in private representations may afford relevant comparisons" to fix the reasonable hourly rate. Id. at 895 n. 11, 104 S.Ct. at 1547 n. 11. In this circuit, the rule is more specific: if an attorney has a customary billing...

To continue reading

Request your trial
45 cases
  • Colindres v. U.S. Dep't of State
    • United States
    • U.S. District Court — District of Columbia
    • 14 Diciembre 2021
    ...bind[s] the circuit ‘unless and until overturned by the court en banc or by Higher Authority." (quoting Save Our Cumberland Mts., Inc. v. Hodel , 826 F.2d 43, 54 (D.C. Cir. 1987) )).9 Because Plaintiffs have not alleged that they were deprived of a constitutionally protected liberty interes......
  • Islamic Center of Mississippi, Inc. v. City of Starkville, Miss.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • 30 Junio 1989
    ...(11th Cir.1988); Lightfoot v. Walker, 826 F.2d 516, 524-25 (7th Cir.1987); Save Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43, 55-60 (D.C.Cir.1987) (Wald, J., concurring in part, dissenting in part), modified in part, 857 F.2d 1516 (1988) (en banc); Black Grievance Comm., 802 F.2d at......
  • Powder River Basin Resource Council v. Babbitt, 93-8117
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • 18 Abril 1995
    ...to determine "whether the district court applied improper legal standards or abused its discretion." Save Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43, 47 (D.C.Cir.1987), vacated on other grounds, 857 F.2d 1516 (1988) (en Unless one of the statute's exceptions is met, no plaintiff m......
  • Dague v. City of Burlington
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • 12 Junio 1991
    ...Laboratories, 842 F.2d 1436, 1451 (3d Cir.1988); McKenzie v. Kennickell, 875 F.2d 330 (D.C.Cir.1989); Save Our Cumberland Mountains, Inc. v. Hodel, 826 F.2d 43, 53 n. 6 (D.C.Cir.1987); Lattimore v. Oman Construction, 868 F.2d 437, 439 (11th Cir.1989), we disagree. Apart from the anomaly of ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT