GOLDEN GATE AUDOBON SOC. v. US ARMY CORPS OF ENG.

• Decision Date: 31 July 1989
• Docket Number: No. C 87-6063 TEH.,C 87-6063 TEH.
• Citation: 732 F. Supp. 1014
• Court: U.S. District Court — Northern District of California
• Parties: GOLDEN GATE AUDOBON SOCIETY, INC., et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

732 F. Supp. 1014

GOLDEN GATE AUDOBON SOCIETY, INC., et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

No. C 87-6063 TEH.

United States District Court, N.D. California.

July 31, 1989.

COPYRIGHT MATERIAL OMITTED

Alan Waltner and Thomas Roy Gorman, Gorman & Waltner, Oakland, Cal., and Zach Cowan, San Francisco, Cal., for plaintiffs.

Gail Cooper, U.S. E.P.A., Office of the Gen. Counsel, Karen L. Egbert, Environmental Defense Section, Benjamin F. Wilson, Don G. Scroggin, Brenda Mallory, Beveridge & Diamond, Donald A. Carr, Acting Asst. Atty. Gen., Karen L. Egbert, Thomas R. Lotterman, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., and Joseph P. Russoniello, U.S. Atty., and Francis B. Boone, Asst. U.S. Atty., San Francisco, Cal., for defendants.

ORDER

THELTON E. HENDERSON, District Judge.

On August 30, 1988, this Court found that plaintiffs were entitled to an interim award of attorney's fees against the United States Army Corps of Engineers (hereafter "Corps" or "defendants") under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d)(1)(A), based on their success to date in this litigation. We also approved an hourly rate of $160 for plaintiffs' attorneys Alan Waltner and Roy Gorman. However, we directed the parties to meet and confer with respect to a reasonable number of compensable hours. Unfortunately, the parties were unable to resolve this matter; thus, we are now called upon to determine a reasonable fee award. In addition, plaintiffs urge the Court to make an additional finding relevant to the hourly rate issue in light of recent Ninth Circuit authority. Finally, they seek reconsideration of this Court's determination that plaintiffs are not entitled to fees against the Corps under the Clean Water Act, 33 U.S.C. § 1365. Each of these issues will be addressed in turn.¹

A. DETERMINATION OF REASONABLE ATTORNEY'S FEES

Under EAJA, the amount of fees to be awarded is calculated by multiplying the number of "reasonable hours times a reasonable market rate." Int'l Woodworkers of America, AFL-CIO v. Donovan, 792 F.2d 762, 765 (9th Cir.1985). In determining what is a "reasonable" number of hours, we consider those Kerr factors² that are relevant to this issue, namely: 1) the time and labor required, 2) the novelty and difficulty of the questions involved, 3) time limitations imposed by the circumstances, and 4) the results obtained. Hours which are duplicative, unproductive, excessive or otherwise unnecessary are non-compensable. Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983).

The party seeking the award must also provide adequate documentation of the number of hours worked and the nature of the work performed. Williams v. Alioto, 625 F.2d 845, 849 (9th Cir.1980), cert. denied, 450 U.S. 1012, 101 S.Ct. 1723, 68 L.Ed.2d 213 (1981); Dennis v. Chang, 611 F.2d 1302, 1308-09 (9th Cir.1980). Plaintiffs' records provide ample documentation to support their request. Ackerman v. Western Electric Co., Inc., 643 F.Supp. 836, 863 aff'd, 860 F.2d 1514 (9th Cir.1988) (While other circuits require ... detailed, contemporaneous time records, the Ninth Circuit requires only that the affidavits be sufficient to enable the court to consider all the factors necessary to determine a reasonable attorney's fee award").

Plaintiffs seek $70,705.00 in fees (and $880.30 in costs)³ for 593 hours spent litigating the merits, as well as their entitlement to, and the amount of, attorney's fees.⁴ These hours can be broken down as follows: a) Alan Waltner, lead counsel: 323 hours, b) Roy Gorman, co-counsel: 28.25 hours, c) Dottie Lemiuex,⁵ contract associate: 64 hours, d) Mary Decker, law clerk: 99.5 hours, e) Michael Miller, law clerk: 7.25 hours, and f) Deborah Benrubi, paralegal: 71 hours.

1. Fees on the Merits

a. Summary judgment motion

The Corps claims that the expenditure of 48.25 hours to prepare plaintiffs' partial summary judgment brief and supporting affidavits was excessive, given that portions of the brief and affidavits were taken from pleadings in another action. However, it does not follow that because plaintiffs were able to employ segments of existing pleadings (some of which they assisted in preparing), the hours requested for preparing their summary judgment motion must be automatically discounted. Rather, the question is whether it was reasonable to expend 48.25 hours to prepare plaintiffs' summary judgment brief (which addressed central issues in the case), given their utilization of existing pleadings. We conclude, based on this Court's experience, and the complexity of the case and the issues raised, that the answer to this question is clearly yes. Indeed, had plaintiffs not had the opportunity or foresight to employ portions of the other brief, or utilize existing affidavits, we expect their hours would have considerably exceeded 48.25.

b. Pre-complaint hours

Plaintiffs expended 38 hours between September 15, 1987 and the time they served the 60-day intent-to-sue notice on October 16, 1987. They expended an additional 58.75 hours between October 16th and the filing of the complaint on December 21, 1987. The Corps contends these hours are excessive; however, after reviewing the time sheets, and defendants' specific complaints, we conclude otherwise.

First, we note that plaintiffs have already exercised considerable billing judgment in this time period, excising 35.75 hours from their request.

Second, we reject defendants' assertion that plaintiffs should not be fully compensated for the 24.5 hours spent "reading the file." A review of the 12 items objected to (See. Defs' App. III), shows that these items involve much more than just "reading the file." We conclude that all twelve items represent time that was reasonably expended.

Third, defendants make the general objection that time spent reviewing unidentified documents should be discounted; they do not however, point to any particular "unidentified documents." Moreover, our review shows that plaintiffs have sufficiently identified the matters they reviewed. To extent that defendants are suggesting that plaintiffs should identify the exact title of, or describe in detail, every single piece of paper they review, we reject this approach as unduly burdensome and unnecessary.

Fourth, defendants complain that plaintiffs should not be compensated for time spent familiarizing themselves with an area of law, but rather such efforts should be absorbed in overhead. While we would not expect defendants to finance basic background lessons for plaintiffs' lawyers in whole areas of law with which they are unfamiliar, that is hardly the case here. For example, defendants object to item # 34 which identifies 45 minutes spent on reading various Clean Water Act cases. Plaintiffs' counsel are certainly entitled to (and in fact would be badly remiss if they did not) review case law relevant to the issues in this action. Defendants also point to item # 30 wherein a portion of 4.5 hours was spent reviewing Clear Water Act regulations (which are not a model of clarity) to spot issues relevant to the Distribution Center. Again, such research, directed to the specifics of the case, is clearly compensable.

Fifth, defendants complain that plaintiffs should receive no compensation for pre-complaint hours involving telephone calls and/or meetings with EPA, the Corps, and other individuals. In particular, defendants argue that discussions with EPA are noncompensable because fee awards are not allowed for time spent in administrative proceedings unnecessary to the commencement of the suit, citing Webb v. Bd. of Education of Dyer County, 471 U.S. 234, 105 S.Ct. 1923, 85 L.Ed.2d 233 (1985). This authority is inapposite as plaintiffs are not attempting to recover fees for time spent in any administrative proceeding unnecessary to the commencement of the suit. Plaintiffs' informal conversations with EPA regarding various aspects of this case appear completely appropriate and compensable.

Defendants also complain that plaintiffs' client representation agreements were not drafted until October 30, 1987, and December 16, 1987 and therefore any time spent prior to these dates is non-compensable. See Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) (en banc) (hours not properly billed to one's client can not be billed to one's adversary). However, plaintiffs' counsel has an ongoing relationship with plaintiffs and the initial work on this case was undertaken pursuant to a verbal extension of an existing agreement. The time entries relating to the contract (for which no fees are sought) simply reflect the memorializing of the verbal contract. Waltner Suppl. Decl. at 6, ¶ 11.

Sixth, defendants complain that time spent on two Freedom of Information Act requests should not be compensated because they were unnecessary given that "virtually all" of the information sought was a matter of public record in a prior suit. However, as defendants concede, not all the information sought was of record in the prior suit; in addition, it is unclear why it would not be reasonable for plaintiffs to believe that additional relevant information might not be revealed as a result of their FOIA requests.

c. The February 24, 1988 letter

Defendants argue that it was unreasonable for plaintiffs to expend 21 hours to prepare a 3 page settlement letter to the Corps. Preliminarily, we note that just because a letter is short does not necessarily mean that its contents did not require a significant amount of background preparation. Moreover, defendants have ignored plaintiffs' statement in their time summary that while the research undertaken prior to the drafting of the settlement letter was more detailed than necessary for that letter, it was retained for future use in the summary judgment motion. In addition, the research (which involved the substantial task of researching the legislative and...