Baykeeper v. West Bay Sanitary Dist.
| Decision Date | 01 December 2011 |
| Docket Number | No. C-09-5676 EMC,C-09-5676 EMC |
| Parties | SAN FRANCISCO BAYKEEPER, Plaintiff, v. WEST BAY SANITARY DISTRICT, Defendant. |
| Court | U.S. District Court — Northern District of California |
PLAINTIFF'S MOTION FOR INTERIM
AWARD OF ATTORNEY'S FEES AND
Plaintiff's motion for an interim award of attorneys' fees and costs came on for hearing before the Court on October 7, 2011. Docket No. 139. For the reasons set below, the Court PARTIALLY GRANTS Plaintiff's motion for interim attorney's fees and litigation expenses, and DENIES Plaintiff's motion for interim expert costs.
Plaintiff San Francisco Baykeeper filed this suit against Defendant West Bay Sanitary District, alleging violations of the Clean Water Act ("CWA"), the California Porter-Cologne Water Quality Control Act, and various municipal ordinances and codes. Plaintiff sought a judgment declaring that Defendant violated the CWA by discharging pollutants without a permit, an injunction preventing further discharges without a permit, and civil penalties for the alleged discharges. Docket No. 126 at 7 ("Partial Summ. Judgment"). Plaintiff later dismissed its claims under the Porter-Cologne Act, and the Court declined to exercise supplemental jurisdiction over the claims based on municipal ordinances and codes. Docket No. 160 at 3 ("Opp.").
In January 2011, Plaintiff moved for partial summary judgment with respect to 68 alleged spills. Docket No. 71. The Court granted summary judgment with respect to 20 of 23 Sanitary Sewer Overflows ("SSOs") that discharged pollutants directly into surface waters, and 1 of 45 SSOs that discharged from a Municipal Separate Storm Sewer ("MS4") into surface waters for a total of 26 days. Docket No. 126 at 57.
Based on this grant of partial summary judgment, Plaintiff now moves for an interim award of attorney's, expert, and litigation fees under § 505(d) of the CWA. Plaintiff seeks $223,931.06 in expert costs, $4,788.79 in litigation expenses, and $861,665.16 in attorney's fees for a total of $1,090,385.01 in costs through March 25, 2011 and related to this motion. Motion at 11; Docket No. 163 at 15 ("Reply").
Under § 505(d) of the CWA, "[t]he court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any prevailing or substantially prevailing party, whenever the court determines such award is appropriate." 33 U.S.C. § 1365(d) (2006). When passing § 505(d), Congress found that "[t]he Courts should recognize that in bringing legitimate actions under this section citizens would be performing a public service and in such instances, the court should award costs of litigation to such party." S. REP. NO. 92-414, at 79 (1971), FWPC72 Leg. Hist. 19, at *3747 (LEXIS).
The decision to award reasonable attorney's fees requires two findings: that the fee applicant is a prevailing party, and that an award of attorney's fees is appropriate. Resurrection Bay Conservation Alliance v. City of Seward, 640 F.3d 1087, 1091 (9th Cir. 2011). As long as there are no special circumstances that would render the award of attorney's fees unjust, a district court must award a reasonable fee to the prevailing party. Id. at 1094. A reasonable fee is determined through the lodestar method and application of the Kerr factors, the most critical of which is the degree of the success obtained. Id. at 1095.
The Court must first determine whether Plaintiff is a prevailing party. In general, "[t]he touchstone of the prevailing party inquiry must be the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989). This is a "generous formulation," requiring only that "the plaintiff has succeeded on any significant issue in litigation which achieved some of the benefit the parties sought in bringing suit." Id. at 792. Even minor relief can create prevailing party status; "while the nature and quality of relief may affect the amount of the fees awarded, an extremely small amount of relief is sufficient to confer prevailing party status." Saint John's Organic Farm v. Gem Cnty. Mosquito Abatement Dist., 574 F.3d 1054, 1059-60 (9th Cir. 2009); see also Farrar v. Hobby, 506 U.S. 103 (). Thus, a party may obtain attorney's fees once the party prevails on the merits as to one or more of its claims. Marks v. Clarke, 102 F.3d 1012, 1034 (9th Cir. 1996).
In the case at bar, Plaintiff seeks an award of interim fees. Courts have awarded interim fees under a number of fee shifting statutes in order Golden Gate Audobon Soc'y, Inc. v. U.S. Army Corps of Eng'rs, 732 F. Supp. 1014, 1021 (N.D. Cal. 1989) (). The Supreme Court has indicated interim fees may be awarded where the plaintiff "established the liability of the opposing party, although final remedial orders had not been entered." Hanrahan v. Hampton, 446 U.S. 754, 757 (1980). In Hanrahan, however, the Supreme Court denied interim attorney's fees where the plaintiffs had not prevailed on the merits of their claims, but had only established their right to a trial. Id. at 758. As a result, the plaintiffs had yet to prevail because at the trial level, "[t]he jury may or may not decide some or all of the issues in favor of the respondents." Id. at 759.
Following Hanrahan, the Ninth Circuit has found that in order to reach prevailing party status, a party need not "win a judgment that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Marks, 102 F.3d at 1034; see also Animal Lovers Volunteer Ass'n, Inc. v. Carlucci, 867 F.2d 1224, 1225 (). In Marks, the Ninth Circuit affirmed partial summary judgment against the defendants based on an unlawful search of persons present at the premises. 102 F.3d at 1034. The court found that a judgment in favor of the persons searched was appropriate, except for those persons as to whom probable cause existed. Id. The court left it to the district court to determine which parties the defendants had probable cause to search. Id. Based on this partial summary judgment, the plaintiffs had established their entitlement to relief rather than being limited to "the mere right to proceed to trial." Id. By establishing the defendants' liability, the plaintiffs were entitled to interim attorney's fees even though the extent of liability was still to be determined. Id.
Likewise, in Animal Lovers, the Ninth Circuit awarded interim attorney's fees where the plaintiffs received declaratory relief but had yet to receive injunctive relief. 867 F.2d at 1227. The court found that its determination that the Environmental Assessment did not support the defendants' finding of no significant impact satisfied the plaintiffs' request for declaratory relief, and put the plaintiffs, "as a practical matter, in a markedly better position than at the outset of their lawsuit." Id. Because the plaintiffs had succeeded on a significant issue in litigation which achieved some of the benefit that they had sought in bringing suit, the court awarded them attorney's fees.
In Golden Gate Audobon Society, the court granted interim attorney's fees to the plaintiffs based on a partial grant of summary judgment in a case asserting a violation of the CWA. Golden Gate Audobon Soc'y, Inc. v. U.S. Army Corps of Eng'rs, 738 F. Supp. 339, 340 (N.D. Cal. 1988). After finding there was no direct cause of action under the CWA, the court nonetheless awarded fees under the Equal Access to Justice Act after it found that the Defendants had failed to properly interpret the CWA when enforcing the statute against a Port. Id. at 343. Although the plaintiffs had yet to achieve their ultimate goal of stopping the Port's operations, the court found that its decisionto have the defendants re-examine the Port's actions was sufficient to make the plaintiffs prevailing parties for the purpose of awarding interim attorney's fees under the EAJA. Id.
Similarly, in United States v. City of San Diego, the court awarded interim fees to an intervenor-Plaintiff who had sought to prevent entry of a proposed decree after the court deferred approval of the consent decree. 18 F. Supp. 2d 1090, 1096 (S.D. Cal. 1998). The court did not make a final decision on the consent decree until two years after the award of interim fees. Id.
Defendant does not contend that interim fees can never be awarded under the CWA. It does not seek to distinguish the CWA fee provision from e.g., the EAJA in this regard, even though § 505(d) of the CWA refers to issuance of "final order" as a predicate to awarding fees. Like the CWA, the EAJA also has a "final judgment" requirement. 28 U.S.C. § 2412(d)(1)(B) (2006) . Notwithstanding that language in the EAJA, the court in Golden Gate Audobon Society found that a final judgment was not required because legislative history "explicitly states that this subsection should not be construed as requiring a final judgment on the merits before a court may award fees." 738 F. Supp. at 341 (citation omitted). Similarly, the...
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