Natural Resources Defense Council, Inc. v. Winter
| Citation | 543 F.3d 1152 |
| Decision Date | 16 September 2008 |
| Docket Number | No. 07-55294.,07-55294. |
| Parties | NATURAL RESOURCES DEFENSE COUNCIL, INC.; The International Fund for Animal Welfare; Cetacean Society International Ocean Futures Society; Jean-Michel Cousteau, Plaintiffs-Appellees, v. Donald C. WINTER, in his official capacity as Secretary of the Navy; United States Department of the Navy; Carlos M. Gutierrez, in his official capacity as Secretary of the Department of Commerce; National Marine Fisheries Service; William Hogarth, in his official capacity as Assistant Administrator for Fisheries of the National Oceanic and Atmospheric Administration; Conrad C. Lautenbacher, Jr., Vice Admiral, in his official capacity as Administrator of the National Oceanic and Atmospheric Administration, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Kathryn E. Kovacs, United States Department of Justice, Environment & Natural Resources Division, Washington, D.C., for the defendants-appellants.
Richard B. Kendall, Irell & Manella LLP, Los Angeles, CA; Joel R. Reynolds, Natural Resources Defense Council, Inc., Santa Monica, CA, for the plaintiffs-appellees.
Appeal from the United States District Court for the Central District of California; Florence-Marie Cooper, District Judge, Presiding. D.C. No. CV-06-04131-FMC.
Before: WILLIAM C. CANBY, JR., JAY S. BYBEE, and MILAN D. SMITH, JR., Circuit Judges.
Defendant-Appellant, Donald C. Winter (the Navy), appeals the district court's decision to award attorneys' fees to Plaintiffs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The Navy claims that (1) the amount of the award for some of the attorneys working on the case should not have been enhanced above the statutory rate, (2) the limited extent of Plaintiffs' success merited a reduction in fees, and (3) the award of appellate fees was improper because the fee application was filed in the district court, not in the court of appeals. We conclude that the district court did not abuse its discretion on the second and third issues. However, because we conclude that the standard used by the district court to determine the first issue constitutes an error of law, we vacate the district court's order awarding fees and remand for additional fact finding and recalculation of fees in accordance with this opinion.
On June 28, 2006, the Natural Resources Defense Council (NRDC), along with several other environmental groups (collectively, Plaintiffs) filed suit (hereinafter NRDC II) against Winter, in his capacity as Secretary of the Navy, alleging that the Navy had violated the National Environmental Policy Act (NEPA), the Marine Mammal Protection Act (MMPA), and the Administrative Procedure Act (APA). Plaintiffs also filed an application for a temporary restraining order (TRO) and a preliminary injunction to enjoin the Navy's use of mid-frequency active sonar during its Rim of the Pacific (RIMPAC) 2006 training exercise. RIMPAC 2006 was a major multi-national Navy training exercise that took place in the waters surrounding the Hawaiian Islands from June 26 to July 28, 2008. Starting July 6, the training included the use of mid-frequency active sonar, which is known to disrupt some of the marine mammals that live in those waters. Attorneys at the California-based firm Irell & Manella LLP (Irell) provided outside representation to the environmental groups.
On June 30, the Navy invoked the national defense exemption contained in the MMPA, which had the effect of exempting all mid-frequency active sonar activity from compliance with the MMPA. The Navy also stated its intent to comply with the mitigation measures set forth in the Incidental Harassment Authorization approved by the National Marine Fisheries Service on June 27.
On July 3, the district court granted the TRO on the NEPA claim, enjoining the use of mid-frequency active sonar for ten days pending a hearing on whether to grant a preliminary injunction, and also ordered the parties to "meet and confer . . . to determine if an agreement can be reached on mitigation measures that would avoid the need for further provisional relief in this case." The Navy immediately appealed the TRO to this court.
The parties settled four days later, on July 7, one day after the scheduled start of sonar training. As part of the settlement, the Navy agreed to implement or modify several mitigation measures it had previously rejected. The TRO appeal was voluntarily dismissed on motion by the parties prior to any ruling on the merits. In this case, we consider the propriety of the district court's award of attorneys' fees.
At the time Plaintiffs brought this suit, a companion case was concurrently being litigated in the same court, in front of the same judge. NRDC v. Winter, No. CV 05-7513 FMC (C.D. Cal. filed Oct. 19, 2005) (hereinafter NRDC I). At the time the TRO was granted in NRDC II, the attorneys were still litigating threshold issues such as jurisdiction and standing in NRDC I. In fact, the Second Amended Complaint in NRDC I was not filed until April 2008, and the case is still being litigated.
NRDC I challenges the Navy's use of mid-frequency active sonar in all of its testing and training exercises, including the biennial RIMPAC training exercise, alleging violations of NEPA, APA, and the Endangered Species Act. The same legal issues presented in this suit—whether the Navy complied with certain federal statutes—remain at issue in NRDC I. The factual issues are also substantially the same, except that NRDC I covers a wider range of Navy training exercises.
Finally, the NRDC I Plaintiffs are all involved in this suit with the exception of the League for Coastal Protection. Plaintiffs' counsel for NRDC I included all of the Irell attorneys, the senior NRDC attorneys, and one of the junior NRDC attorneys litigating this suit. At least two of the Navy's attorneys in NRDC I are also involved in this case.
Plaintiffs' attorneys consisted of two senior and two junior in-house attorneys from NRDC, as well as one senior litigation partner and three junior associates from Irell. The Navy does not contest the award of enhanced fees for the efforts of the two senior NRDC attorneys, so we do not discuss their qualifications.
During the prosecution of this suit, one junior NRDC attorney served as counsel in NRDC I and in NRDC v. Gutierrez, 457 F.3d 904 (9th Cir.2006), the latter also being a challenge to the Navy's use of low-frequency sonar. At NRDC, she worked primarily on marine mammal protection and developed expertise on the specific issue of high-intensity underwater sound. She has co-authored a journal article and a report on the topic of sonar and has spoken at the United Nations and other environmental law fora on the issue. She also served as part of a working group drafting guidelines for the conduct of noise-producing activities in the Mediterranean Sea.
The second NRDC junior attorney had graduated from law school and had worked as a full-time consultant-paralegal at NRDC for over ten years, but was not a member of the bar at the time this suit was settled. He also had developed expertise in the area of high-intensity underwater sound. He is the author of two editions of a report and the co-author of a journal article on the topic of noise and its effect on mammals, and the co-author for the entry for "sonar" in the Encyclopedia of Tourism in Marine Environments. He had been appointed an Alternate Member and Subcommittee Member to the Federal Advisory Committee on Acoustic Impacts on Marine Mammals convened by the U.S. Marine Mammal Commission, and served on the review panel for the Congressional Research Service's 2005 report to Congress entitled "Active Military Sonar and Marine Mammals." Finally, he had spoken at numerous events on the impact of sonar on marine mammals.
The Irell senior litigation partner who served as co-lead counsel in this case has a broad litigation practice. There is evidence in the record that he has experience in alternate dispute resolution and arbitration, appellate litigation, entertainment transactions, intellectual property litigation, and general litigation. His environmental law experience consisted of serving as co-lead counsel in NRDC I and one other case, NRDC v. U.S. Dep't of the Navy, 857 F.Supp. 734 (C.D.Cal.1994). In the 1994 case, NRDC challenged the Navy's testing of explosives near the Channel Islands National Marine Sanctuary on the basis of evidence of harm to marine life from high-intensity sound as well as the Navy's alleged failure to comply with NEPA and MMPA.
Three junior associates at Irell also served as counsel in NRDC I. According to the record, however, none of these three associates has any other prior experience in environmental litigation. Nor is there any indication that any has authored any articles, done any research, participated in any fora, or otherwise developed a specialty in environmental matters. Nothing in the record suggests that environmental litigation was a practice area for any of the three Irell associates.
After NRDC II was dismissed, NRDC filed a motion pursuant to the EAJA for fees and costs in the district court for the work done by NRDC and Irell attorneys. The district court granted the motion, awarding fees totaling $437,584.24 for work in the district court and on the TRO appeal. In doing so, the district court first found that Plaintiffs were eligible for attorneys' fees under the EAJA and that they were the prevailing parties. The court also found that the Navy's position was not substantially justified such that an award of fees would be unmerited. The Navy does not contest these findings on appeal. The district court...
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