Save Our Cumberland Mountains, Inc. v. Hodel
| Decision Date | 23 December 1986 |
| Docket Number | Civ. A. No. 81-2134. |
| Citation | 651 F. Supp. 1528 |
| Parties | SAVE OUR CUMBERLAND MOUNTAINS, INC., et al., Plaintiffs, v. Donald P. HODEL, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
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Brent N. Rushforth, Jim McElfish, Dow, Lohnes & Albertson, L. Thomas Galloway, Galloway & Greenberg, and Katherine P. Ransel, Nancy Crisman, Advocates for the Public Interest, Washington, D.C., for plaintiffs.
Alfred T. Ghiorzi, Dept. of Justice, Land and Natural Resources Div., Washington, D.C., for defendants.
The Surface Mining Control and Reclamation Act of 1977 ("Surface Mining Act" or "Act"), 30 U.S.C. §§ 1201-1328, is a comprehensive statute designed, inter alia, to control and remedy adverse social, economic and environmental effects of surface coal mining operations, to minimize damages and risks affecting productivity of the soil arising from such operations, to protect the health and safety of the public, and to prevent or mitigate adverse effects of present and future surface coal mining operations. The Secretary, Department of the Interior ("Secretary") is primarily responsible for administering and implementing the Act and is obligated to take enforcement action against strip mining operators who have violated provisions of the Act.
In September 1981, counsel for two Appalachian environmental groups, Save Our Cumberland Mountains, Inc. and Council of Southern Mountains, joined forces and filed this citizens' suit against the Secretary of Interior and the Director of the Office of Surface Mining ("OSM") of the Interior Department. They sought to enjoin those officials from further failing to recognize and to perform their statutory enforcement duties under the Surface Mining Act.
At an early stage of the litigation the plaintiffs were granted summary judgment relief and on December 28, 1982, defendants were directed to assess mandatory, statutory, civil penalties against surface mine operators who had been previously cited for violations and issued cease and desist orders, but who nonetheless had never been fined and subject to the final relief prescribed under the Surface Mining Act. The Secretary was also ordered to pursue mandatory enforcement action against operators who ignored failure-to-abate, and cease and desist orders as required under relevant regulations. Save Our Cumberland Mountains, Inc. v. Watt, 550 F.Supp. 979 (D.D.C.1982). Meanwhile, Congress specifically appropriated $1.1 million to implement this Court's 1982 ruling and on November 4, 1983, President Reagan signed into law H.R. 3069, the Department of Interior and Related Agencies Appropriations Act for 1984, Pub.L. No. 98-146, 97 Stat. 919 (Nov. 4, 1983).
The government successfully appealed the December 1982 summary judgment decision, and on January 20, 1984, this Court's ruling was reversed on procedural grounds. Save Our Cumberland Mountains, Inc. v. Clark, 725 F.2d 1434 (D.C. Cir.1984). The Circuit Court held that venue did not lie in the District of Columbia to review the Interior Secretary's failure to seek enforcement of the Act. Thereafter, the plaintiffs sought a rehearing en banc. On April 2, 1984, the rehearing petition was granted and the Circuit Court's opinion and judgment were vacated.
Following these developments, the parties to this litigation pursued negotiations which resulted in a settlement, the provisions of which were embodied in an amended order entered by this Court on January 31, 1985. That order expressly provided that plaintiffs could apply for an award of attorneys' fees and costs for legal services undertaken and completed through January 31, 1985.
Section 520 of the Surface Mining Act, 30 U.S.C. § 1270, expressly recognizes citizen suits and provides in part that persons having an interest which is adversely affected may commence a civil proceeding to compel compliance with the Act and authorizes the Court to award costs and attorneys' fees. Plaintiffs rely on this provision to request an award of attorneys' fees and costs totaling $463,497 as the prevailing party in this major litigation. Defendants concede, as they must, to plaintiffs' entitlement to fees and costs. However, they contest plaintiffs' petition arguing that the amount claimed is excessive, reflects unnecessary monitoring efforts by attorneys, inflated hourly rates and improper and undeserved application of multipliers.
After considering the factual submissions and representations of counsel and their legal memoranda, the Court determines that the sum of $383,273.00 in fees and $9,697.19 in costs is a fair and reasonable amount.
The Court's determination of a reasonable fee award follows the market value methodology approved recently by the Supreme Court in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, ___ U.S. ___, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986) and Blum v. Stenson, 465 U.S. 886, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). The determination of an appropriate award begins with the calculation of a "lodestar" —the number of hours reasonably expended multiplied by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). And as Justice Powell noted—"This calculation provides an objective basis by which to judge the value of a lawyer's services." Id. at 433, 103 S.Ct. at 1939. In certain circumstances, the court may then adjust the "lodestar" upward or downward through the use of multipliers if merited. Blum, 465 U.S. at 897, 104 S.Ct. at 1548.
The starting point of a "lodestar" analysis is a determination of the number of hours reasonably expended by the attorneys for the prevailing parties in the litigation. Billing judgment is an important element of the fee request. Excessive or unproductive time must be subtracted from the calculation. Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) (en banc). Where the petitioner has omitted unproductive time from its request, the application should identify the nature of the work and the number of hours involved. National Association of Concerned Veterans v. Secretary of Defense ("NACV"), 675 F.2d 1319, 1327-28 (D.C.Cir.1982). Petitioning attorneys must document the number of hours claimed with sufficient detail to permit both the court and opposing counsel to conduct an informed appraisal of the merits of the application. Id. at 1323.
In this action, plaintiffs have requested compensation for a total of 2,508.20 hours claimed by attorneys and a total of 644.45 hours claimed by paralegals. Their request includes demands for work performed on the following discrete segments of this litigation:
Plaintiffs have proffered extensive documentation, including a day-by-day breakdown of the time spent by every attorney on each segment of the case and a description of the hours that were excluded from the fee request in the exercise of billing judgment. The government contends, however, that the total number of claimed hours must be reduced further because of what it identifies as substantial blocks of nonproductive time.
The Court is reluctant to engage in a detailed line-by-line analysis of the fee petition and the voluminous file in this case to determine, like a quasi-management consultant, if plaintiffs' counsel could have accomplished particular tasks or pleadings more efficiently. See Copeland, 641 F.2d at 903. As the Supreme Court succinctly stated "A request for attorneys' fees should not result in a second major litigation." Hensley, 461 U.S. at 437, 103 S.Ct. at 1941. The extensive time records and affidavits submitted demonstrate that plaintiffs' counsel actually spent the time they claim. Therefore, to avoid a second round of litigation which threatens to surpass the litigation on the merits of this matter, the Court will follow the procedure suggested by Circuit Judge Edward Tamm in his concurrence in NACV, and consider the "issues" raised by the government's opposition to the hours claimed for each of the five categories in order to determine if reductions or more detailed scrutiny of the time records are appropriate. NACV, 675 F.2d at 1338.
Plaintiffs request compensation for a total of 359.80 hours expended by their attorneys during the initial stages of this litigation, primarily for the work of Attorneys L. Thomas Galloway, Brent Rushforth, and James McElfish. A small amount of time is claimed by Attorney Lee Bishop. The government challenges specifically only 38.6 of the expended hours as unreasonable, arguing that particular pleadings should have taken less time to prepare. Their principal objection is to the 26 hours claimed for drafting the complaint which the government claims could have been done in one-half the time charged. On its face, however, the hours expended in preparing and drafting the complaint are neither unreasonable nor excessive. The same can be said of the hours claimed for other tasks undertaken in the early stages of this litigation, including preparation for oral argument.
The government also raises a general challenge to the time the attorneys devoted to reviewing each other's work and consulting or conferring with one another. It cannot be denied that such conferences are essential and result in effective and efficient litigation. As related to Category 1, the amount of time spent on these activities was not excessive by any standard. All hours claimed by plaintiffs' counsel for this category are allowed.
A total of 443.55 hours is claimed for work done by six attorneys on the application for rehearing before ...
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