Sierra Club v. Jackson

• Decision Date: 04 March 2013
• Docket Number: Civil Action No. 11–1576 (RBW).
• Citation: 926 F.Supp.2d 341
• Court: U.S. District Court — District of Columbia
• Parties: SIERRA CLUB, Plaintiff, v. Lisa P. JACKSON, in her official capacity as Administrator, United States Environmental Protection Agency, et al., Defendants.

926 F.Supp.2d 341

SIERRA CLUB, Plaintiff,

v.Lisa P. JACKSON, in her official capacity as Administrator, United States Environmental Protection Agency, et al., Defendants.

Civil Action No. 11–1576 (RBW).

United States District Court, District of Columbia.

March 4, 2013.

Robert Steven Ukeiley, Berea, KY, for Plaintiff.

Eileen T. McDonough, U.S. DOJ, Environmental Defense Section, Washington, DC, for Defendants.

MEMORANDUM OPINION

REGGIE B. WALTON, District Judge.

The plaintiff, the Sierra Club, brought this action against Lisa P. Jackson in her capacity as the Administrator of the United States Environmental Protection Agency (“EPA”), as well as the EPA itself (together, “the EPA”), alleging unreasonable delay under Section 304(a) of the Clean Air Act, 42 U.S.C. § 7604 (2006), in responding to the plaintiff's request that the EPA develop computer models for measuring ozone particles. Complaint (“Compl.”) ¶¶ 34–43. Currently before the Court is the Plaintiff's Motion for Attorney Fees and Costs Under the Clean Air Act, 42 U.S.C. § 7604(d) (“Pl.'s Mot.”). Upon careful consideration of the parties' submissions, the Court concludes for the following reasons that the plaintiff's motion must be granted in part and denied in part.¹

I. BACKGROUND

The Sierra Club's complaint alleged that the EPA had unreasonably delayed in (1) responding to the Sierra Club's petition for rulemaking (“claim one”) and (2) designating air quality computer models for ozone particles (“claim two”). Compl. ¶¶ 34–43. On January 4, 2012, the EPA responded to the Sierra Club's petition for rulemaking. Stipulation of Dismissal at 2, ECF No. 12. Accordingly, on January 16, 2012, the parties filed a stipulation dismissing claim one with prejudice and claim two without prejudice, id., and thus the only matter currently before the Court is what fees, if any, are due to the Sierra Club's attorneys, Pl.'s Mot. at 1. The EPA does not dispute that the Sierra Club is entitled to fees in this matter. Defs.' Opp'n at 1. The disagreement centers solely on how much compensation is reasonable.

The Sierra Club is primarily represented by the Law Office of Robert J. Ukeiley in Berea, Kentucky. Pl.'s Mot. at 1. The EPA argues that Mr. Ukeiley and his associates should be compensated based on the prevailing rates in Kentucky, where the legal work was performed. Defs.' Opp'n at 7. The EPA further argues that because claim two was dismissed without prejudice, the Sierra Club was not sufficiently successful on that claim to warrant attorney fees for time spent litigating that claim. Defs.' Opp'n at 17. On the other hand, the Sierra Club contends that Mr. Ukeiley's practice is national in scope and the rate should be calculated according to the Laffey index,² a tool for determining the prevailing rate in the Washington, D.C. area where the litigation took place. Pl.'s Mem. at 9. The Sierra Club also argues that the two claims are so intertwined that it is impossible to separate the time spent litigating them in the way that the EPA suggests. Pl.'s Reply at 7.

In addition to Mr. Ukeiley's fees, the Sierra Club also seeks fees for work performed by Neil Levine, a Colorado attorney hired to work on the fee application itself. Pl.'s Mem. at 16. The EPA does not contest Mr. Levine's rates, and the parties have agreed on the number of hours of work for which he should be compensated. Defs.' Opp'n at 18–19. However, the EPA argues that his work is compensable only if the Sierra Club succeeds on its motion for fees. Id.

In the final analysis, the Sierra Club seeks a total of $37,275.92 ³ in attorney fees related to this litigation, Pl.'s Reply at 1, where as the EPA contends that the amount should be only $5,122, Defs.' Opp'n at 19. The EPA does not dispute the $471.91 in costs claimed by the Sierra Club. Pl.'s Reply at 1 n. 2.

II. LEGAL ANALYSIS

The Clean Air Act allows citizens to bring suit to compel agency compliance with its statutory obligations. 42 U.S.C. § 7604(a). Under the Clean Air Act, “the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate.” Id. § 7604(d). In order to award attorney fees under the Clean Air Act, a court must engage in a two-step inquiry, determining first whether the party seeking fees is the prevailing party, and second, whether the requested fees are reasonable. Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983); see also Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 565, 106 S.Ct. 3088, 92 L.Ed.2d 439 (1986). Here, the EPA does not contest that the Sierra Club is at least a partially prevailing party within the meaning of § 7604(d), Defs.' Opp'n at 1, and so the Court confines its analysis to the reasonableness of the fees requests.

Generally, the “starting point” for calculating a reasonable fee is “the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.” Hensley, 461 U.S. at 433, 103 S.Ct. 1933. The result is known as the Lodestar figure, and there is a “strong presumption” that it is reasonable and consistent with the purposes underlying fee-shifting provisions applicable to citizen suits. Delaware Valley, 478 U.S. at 565, 106 S.Ct. 3088. Thus, to arrive at the appropriate amount of fees that should be awarded, the Court will use the Lodestar formula, which calls for the Court to first calculate the rate at which compensation will be awarded, and then determine the number of hours for which compensation is appropriate. Hensley, 461 U.S. at 433, 103 S.Ct. 1933.

A. Standard for Establishing Fees for the Services Provided By the Law Firm of Robert Ukeiley1. Hourly Rate

Although the Clean Air Act provides for attorney fees, it does not provide guidance on how to calculate the reasonable rate at which the Court should compensate attorneys. Davis Cnty. Solid Waste Mgmt. & Energy Recovery Special Serv. Dist. v. EPA, 169 F.3d 755, 757 (D.C.Cir.1999) (per curiam). The general rule in this Circuit is that the “ ‘reasonable hourly rate is that prevailing in the community for similar work.’ ” Donnell v. United States, 682 F.2d 240, 251 (D.C.Cir.1982) (citation omitted). Ordinarily, the “relevant community is the one in which the district court sits.” Id. This rule can work in two ways; some “[h]igh-priced attorneys coming into a jurisdiction in which market rates are lower will have to accept those lower rates for litigation performed there[, while other] attorneys may receive fees based on rates higher than they normally command if those higher rates are the norm for the jurisdiction in which the suit was litigated.” Donnell, 682 F.2d at 251–52.

The District of Columbia Circuit does not follow the rule outlined in Donnell in cases where “out-of-jurisdiction lawyers would receive substantially higher rates than they ordinarily command for work done almost exclusively in their home territory.” See Davis Cnty., 169 F.3d at 758 (noting that although the forum-rate rule has been widely adopted, few courts have used it to justify awarding fees in this manner). As the Circuit has observed, limiting lawyers to fees less than they are accustomed to receiving decreases potential litigants' access to counsel, while limiting counsel to customary rates from their home market in instances where all work is performed in the home market does not have the same undesired negative effect. Id. at 759–60. And “awarding higher Washington rates would not make it harder for parties to find counsel, [but] it would produce windfalls inconsistent with congressional intent.” Id. at 760. Accordingly, courts should calculate attorney fees based on the attorney's home jurisdiction where “virtually all of the work was performed in [the home jurisdiction],” where that jurisdiction is “the less expensive legal market,” and “[t]he only time spent in Washington ... was for the purpose of examining the administrative docket and participating in a short oral argument.” Id. at 760.

Reasonable fees “are to be calculated according to the prevailing market rates in the relevant community, regardless of whether [the] plaintiff is represented by private or nonprofit counsel,” Blum v. Stenson, 465 U.S. 886, 895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984), and even for “attorneys who practice privately and for profit but at reduced rates reflecting non-economic goals.” Save Our Cumberland Mountains, Inc. v. Hodel, 857 F.2d 1516, 1524 (D.C.Cir.1988) (en banc). Fees for attorneys who charge reduced rates for non-economic reasons can be especially difficult to compute, Blum, 465 U.S. at 895 n. 11, 104 S.Ct. 1541, but evidence of “the precise fees that attorneys with similar qualifications have received from fee-paying clients in comparable cases” and “[r]ecent fees awarded by the courts or through settlement to attorneys of comparable reputation and experience performing similar work” are helpful in setting a reasonable rate, Nat'l Ass'n of Concerned Veterans v. Sec'y of Def., 675 F.2d 1319, 1325 (D.C.Cir.1982). Thus, to assist the Court in making this calculation, “[t]he party seeking an award of fees should submit evidence supporting the hours worked and rates claimed.” Hensley, 461 U.S. at 433, 103 S.Ct. 1933;see also Nat'l Ass'n of Concerned Veterans, 675 F.2d at 1325 (“An applicant is required to provide specific evidence of the prevailing community rate for the type of work for which he seeks an award.”).

The Sierra Club contends that because Mr. Ukeiley regularly files lawsuits in the District of Columbia, Laffey rates should apply. Pl.'s Mem. at 13. However, this case fits squarely into the Davis County exception, because as in Davis County, all work was performed in the significantly less expensive jurisdiction. See Davis Cnty., 169 F.3d at 760. And the exception is even more fitting in this case, because in Davis County, unlike here, counsel had to prepare for and participate in a ...