U.S. v. Metropolitan Dist. Com'n

• Decision Date: 11 March 1988
• Docket Number: No. 87-1956,87-1956
• Citation: 847 F.2d 12
• Parties: , 11 Fed.R.Serv.3d 387, 18 Envtl. L. Rep. 21,233 UNITED STATES of America, Plaintiff, Appellee, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants, Appellees. Conservation Law Foundation of New England, Inc., Plaintiff, Appellant. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 12

847 F.2d 12

27 ERC 2087, 11 Fed.R.Serv.3d 387, 18

Envtl. L. Rep. 21,233

UNITED STATES of America, Plaintiff, Appellee, v. METROPOLITAN DISTRICT COMMISSION, et al., Defendants, Appellees.

Conservation Law Foundation of New England, Inc., Plaintiff,

Appellant.

No. 87-1956.

United States Court of Appeals, First Circuit.

Heard March 11, 1988.

Decided May 19, 1988.

J. Cleve Livingston, Boston, Mass., with whom Stephen Gockley was on brief, for plaintiff, appellant.

John M. Stevens with whom Foley, Hoag & Eliot and Marilyn L. Hotch, Acting Gen. Counsel, Boston, Mass., were on brief, for defendant, appellee Massachusetts Water Resources Authority.

Douglas H. Wilkins, Asst. Atty. Gen., with whom James M. Shannon, Atty. Gen., Boston, Mass., was on brief, for defendants, appellees Com. of Mass. and Metropolitan Dist. Com'n.

Before CAMPBELL, Chief Judge, BREYER and SELYA, Circuit Judges.

SELYA, Circuit Judge.

Dismayed by chronic pollution and by the unauthorized and illegal discharge of raw and inadequately-treated sewage into the waters of Boston Harbor, the neighboring city of Quincy, Massachusetts sued the Massachusetts District Commission (MDC), a state agency which operated the port. Quincy's suit, filed in a Massachusetts state court in January 1983, was soon expanded into a full-fledged effort to compel correction of the substandard conditions. Some six months later, the Conservation Law Foundation of New England (CLF), appellant before us, brought a similar action in United States District Court under the Federal Water Pollution Control Act, 33 U.S.C. Secs. 1251-1376 (Clean Water Act). After some preliminary skirmishing, the federal court remarked the advanced state of the Quincy litigation, the striking parallel between the two suits, and the danger that "intervention by the federal district court ... [might] well hinder the cause of cleaning the harbor." CLF v. MDC, C.A. No. 83-1614, slip op. at 5-6 (D.Mass. Mar. 27, 1984) (MDC I ). ¹ Hoping both "to avoid duplicative litigation, [and] to allow ... the state court action to continue to yield progress," id. at 6, the district court stayed CLF's suit while retaining jurisdiction. Id. at 6-7.

Appellant's litigation was still in repose when, in early 1985, the EPA filed its own federal court action against the MDC, the Commonwealth of Massachusetts, and the newly-created Massachusetts Water Resources Authority (MWRA). ² On May 22, the district court consolidated EPA's suit with CLF's, permitted Quincy to intervene as a party plaintiff, and vacated the stay. The EPA then moved for partial summary judgment as to liability. On September 5, 1985, the court granted that motion, found MWRA liable as MDC's successor, and also granted CLF's earlier-filed summary judgment motion to the extent of the counts on which EPA had prevailed. United States v. MDC, C.A. No. 85-0489 (D.Mass. Sept. 5, 1985) (MDC II ) . The court noted that CLF's motion appeared "substantially similar" to EPA's, id. at 26; to the extent they differed, appellant's claims were denied without prejudice. Id. at 26-27.

Thereafter, the parties' efforts focused on remediation. The process was, by and large, a cooperative one. On December 23, 1985, a consent order was entered covering short-term remedial measures. After holding an evidentiary hearing in early May of 1986, the court entered its long-term remedial order. See United States v. MDC, C.A. No. 85-0489 (D.Mass. May 8, 1986) (MDC III ). CLF then filed its motion for attorneys' and experts' fees, seeking a total of close to $380,000 from MDC, MWRA, and EPA. The motion was filed under the fee-shifting provision of the Clean Water Act:

The Court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert fees) to any party, whenever the court determines such award is appropriate.

33 U.S.C. Sec. 1365(d). CLF settled its fees claim against EPA but not with the state defendants. The district court adjudicated the latter claims in a lengthy memorandum and order. United States v. MDC, C.A. No. 85-0489 (Apr. 24, 1987) (MDC IV ). The court held that a fee award was appropriate because CLF had achieved some success "in certain discrete areas." Id. at 2. But after a full examination into the particulars of the request, the court slashed it deeply, awarding a total of $105,755.47 in fees and disbursements. Id. at 15. On June 4, a supplementary order was entered establishing the extent to which MDC and MWRA, respectively, would bear the brunt of the award. CLF filed its notice of appeal on July 31, 1987.

Timeliness of the Appeal

Appellees have questioned the timeliness of CLF's appeal. They concede that, because the federal sovereign was a party to the case, the appeal period was sixty days. Fed.R.App.P. 4(a)(1). Yet, they say this proceeding--which was instituted more than sixty days after the April 24 order--was late. Appellees, however, have mistaken the starting point. We regard the allocational order of June 4 as the catalyst for appeal purposes.

The general rule is that a judgment becomes final and appealable when the court enters a decision resolving the contested matter, leaving nothing to be done except execution of the judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). In this case, the April 24 order did not meet that benchmark. Although the district court had announced the amount of the award, it had not yet determined how the burden of payment would fall as between the two respondents (MDC and MWRA), nor had it suggested that the obligation might be joint and several. CLF could not have executed against either defendant at that point. Thus, the April 24 order lacked the requisite definiteness to trigger the running of the appeal period.

This conclusion is buttressed by the fact that the district judge clearly did not intend the earlier determination to be final. On the contrary, the April 24 decision explicitly contemplated the future entry of another order "to allocate between [MDC and MWRA] their respective responsibilities" for satisfaction of the award. MDC IV, supra, at 15. Inasmuch as the judge did not mean his April 24 order to be the last one as to this award, we must effectuate his intention and treat the later (June 4) order as the starting point for appeal purposes. See United States v. Evans, 365 F.2d 95, 97 (10th Cir.1966); see also Martha's Vineyard Scuba Headquarters, Inc. v. Unidentified, Wrecked and Abandoned Steam Vessel, 833 F.2d 1059, 1066-67 (1st Cir.1987) (noting judge's "special role ... in elucidating the meaning and intendment of an order which he authored"). It follows, then, that since CLF's appeal was taken within sixty days of the entry of the allocational order, it was prosecuted in a timely fashion. ³

Anatomy of the Award

We review a fee award only for mistake of law or abuse of discretion. Wojtkowski v. Cade, 725 F.2d 127, 130 (1st Cir.1984); Maceira v. Pagan, 698 F.2d 38, 39 (1st Cir.1983). In pursuing the inquiry, we regard the judge's discretion in this area to be "broad." E.g., Gabriele v. Southworth, 712 F.2d 1505, 1506 (1st Cir.1983). We address appellant's assignments of error mindful of this standard. Cf. In re Josephson, 218 F.2d 174, 182 (1st Cir.1954) (Magruder, J.) (no abuse of discretion unless appellate tribunal forms "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors"). In the realm of fee awards, "[t]o a far greater extent than is true of discrete legal issues, the battle is likely to be determined in the trial court." Rogers v. Okin, 821 F.2d 22, 30 (1st Cir.1987), cert. denied, --- U.S. ----, 108 S.Ct. 709, 98 L.Ed.2d 660 (1988).

In this case, our perscrutation starts from the premise that courts should use "a time-and-rate-based method of calculation in cases involving the fee-shifting provisions of those federal statutes which do not expressly dictate an alternative method." Segal v. Gilbert Color Systems, Inc., 746 F.2d 78, 85-86 (1st Cir.1984). Section 1365(d) is such a provision. See id. at 86 n. 9 (citing Save Our Sound Fisheries Ass'n v. Callaway, 429 F.Supp. 1136, 1147 (D.R.I.1977)). Accordingly, we apply the vast body of jurisprudence which has sprung up in the crowded vineyard where Congress has planted a proliferous array of fee-shifting statutes. See Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 546, 106 S.Ct. 3088, 3096-97, 92 L.Ed.2d 439 (1986), on reargument, --- U.S. ----, 107 S.Ct. 3078, 97 L.Ed.2d 585 (1987); Segal, 746 F.2d at 86.

The time-and-rate-based approach requires that the trial court fix a base fee or "lodestar." As the Court has instructed, "[t]he most useful starting point for determining the amount of a reasonable fee is 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). See also Delaware Valley, 106 S.Ct. at 3097-98; Blum v. Stenson, 465 U.S. 886, 888, 104 S.Ct. 1541, 1543, 79 L.Ed.2d 891 (1984); Grendel's Den, Inc. v. Larkin, 749 F.2d 945, 950 (1st Cir.1984). Typically, a court proceeds by "determin[ing] the number of hours actually spent and then subtract[ing] from that figure hours which were duplicative, unproductive, excessive, or otherwise unnecessary." Grendel's Den, 749 F.2d at 950. This time around, however, the judge acknowledged the "traditional approach," yet found it unsuited to the exigencies of the particular case. MDC IV, supra, at 3. He decided instead "to identify specific tasks, allocate to [each] task a reasonable amount of time necessary to accomplish it, and then, set a compensation rate for a competent lawyer in performing that task." Id. This...