Center for Environmental Health v. Wheeler

Opinion

Jonathan Evans (CA Bar No. 247376) Center for Biological Diversity 1212 Broadway Street, Suite 800 Oakland, CA 94612 (510) 844-7100 ext. 318 jevans@biologicaldiversity.org Stephanie Parent (OR Bar No. 925908)* Center for Biological Diversity P.O. Box 11374 Portland, OR 97211-0374 (971) 717-6404 sparent@biologicaldiversity.org Attorneys for Plaintiffs *Admitted pro hac vice IN THE UNITED STATES DISTRICT COURT CENTER FOR ENVIRONMENTAL ) HEALTH, et al., ) ) Plaintiffs, ) ) v. ) CASE NO. 4:18-cv-03197-SBA ) MICHAEL S. REGAN, in his official ) capacity as Administrator of the U.S. ) JOINT UNOPPOSED MOTION TO EXTEND TIME TO FILE A MOTION FOR Environmental Protection Agency, et al., ) AWARD OF ATTORNEYS’ FEES AND ) LITIGATION EXPENSES; Defendants, ) ORDER ) and ) ) CROPLIFE AMERICA, ) ) Intervenor-Defendant. ) ) ) Pursuant to Federal Rule of Civil Procedure 6(b) and Civil Local Rule 6-3 Plaintiffs (Center for Environmental Health, Center for Biological Diversity, and Californians for Pesticide Reform) and Federal Defendants (Michael S. Regan, Administrator of the U.S. Environmental Protection Agency (“EPA”), the EPA, the U.S. Fish and Wildlife Service, and Deb Haaland, Secretary of the Interior) hereby file this joint motion to extend the time for Plaintiffs to file a motion for attorneys’ fees and litigation expenses to 90 days from the entry of an order on the Parties’ Second Stipulated Partial Settlement Agreement (“Second Settlement”). Dkt. 123. This extension would allow the Plaintiffs and Federal Defendants time to attempt to resolve the matter of attorneys’ fees and costs without Court involvement. The parties have conferred and Defendant-Intervenor CropLife America does not oppose the relief sought in this joint motion. Under the applicable rules and attorney-fee award provisions of the Endangered Species Act, 16 U.S.C. § 1540(g)(1)(C), Plaintiffs must file a motion for attorneys’ fees and bill of costs within fourteen (14) days of the entry of judgment. Fed. R. Civ. P. 54(d); Civil L.R 54-1(a); Civil L.R. 54-5(a). According to the terms of the Second Settlement, that time begins to run from when the Court enters the Parties’ proposed order on the Second Settlement. Dkt. 123, ¶ 16. The Equal Access to Justice Act further provides that “[a] party seeking an award of fees and other expenses shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses.” 28 U.S.C. § 2412(d)(1)(B). The Supreme Court has held that the EAJA filing deadline is not jurisdictional. Scarborough v. Principi, 541 U.S. 401, 413-14 (2004); see also New Life Evangelistic Ctr., Inc. v. Sebelius, 847 F. Supp. 2d 50, 53 (D.D.C. 2012). The Parties negotiated a first stipulated partial settlement agreement regarding claims against EPA, Administrator Regan, FWS, and Secretary Haaland, without any admission of the allegations or claims, for the alleged violation of their procedural duties concerning completion of the Final Biological Opinion pursuant to ESA Section 7(a)(2) in Counts 1 and 2 set forth in the complaint. Dkt. 111. The Court entered an order effectuating the first stipulated partial settlement on January 4, 2022, and retained jurisdiction to enforce the terms of the settlement agreement. Dkt. 112. The Parties negotiated a Second Settlement with regard to the remaining claims against the EPA and Administrator Regan for the alleged failure to comply with their substantive duties under ESA Section 7(a)(2) by taking final agency actions of registering or reregistering certain products containing malathion in paragraph 84 of the complaint as set forth in Count 1; the alleged unlawful withholding and/or unreasonable delay pursuant to Section 706(1) of the Administrative Procedure Act, 5 U.S.C. § 706(1), of completion of their substantive duties under ESA Section 7(a)(2) as set forth in Count 2; and the alleged violations of ESA Section 7(d), 16 U.S.C. § 1536(d), as set forth in Count 3. Dkt. 123. Having resolved all of the claims in the complaint the only outstanding issues remaining in this case are related to Plaintiffs’ attorneys’ fees and costs. Plaintiffs have fourteen (14) days from the entry of judgment to file any bill of costs and motion for attorneys’ fees and litigation costs pursuant to the ESA. Civil L.R. 54-1(a); Civil L.R. 54-5(a); 16 U.S.C. § 1540(g)(4). Under EAJA, Plaintiffs have thirty (30) days from the final judgment to submit an application for fees and expenses. 28 U.S.C. § 2412(d)(1)(B). To provide additional time for Plaintiffs and Federal Defendants to resolve the matter of attorneys’ fees and litigation costs absent any further involvement from this Court, Plaintiffs and Federal Defendants respectfully request that the Court extend the time for Plaintiffs to file any such motion for 90 days from the Court’s entry of an order on the Second Settlement. Providing the parties additional time to attempt to resolve the issue of attorneys’ fees and costs would reduce or avoid waste of resources to the Parties and the Court that would be incurred by unnecessary motion practice and additional costs. The requested time modification would extend by 76 days the deadline for filing the motion for attorneys’ fees and costs, and may ultimately allow for faster and more efficient resolution of issues surrounding fees and costs. By agreeing to this request for additional time, Federal Defendants are not conceding that Plaintiffs are entitled to fees. Federal Defendants reserve all rights and defense to entitlement and reasonableness of any fee request. As set forth in the attached proposed order, the parties request that this Court order them to provide a status update on the resolution of Plaintiffs’ attorneys’ fees and litigation costs or for Plaintiffs to file their motion for such fees and costs, if such a motion is necessary within 90 days of the entry of the order effectuating the Second Stipulated Partial Settlement Agreement. Respectfully submitted this 12th day of April, 2022. /s/ Jonathan Evans TODD KIM Jonathan Evans Assistant Attorney General Center for Biological Diversity Environment & Natural Resources Division 1212 Broadway Street, Suite 800 SETH M. BARSKY, Chief Oakland, CA 94612 MEREDITH L. FLAX, Assistant Chief Tel: 510-844-7100, ext. 318 jevans@biologicaldiversity.org /s/ Alison Finnegan ALISON C. FINNEGAN, Trial Attorney Stephanie Parent U.S. Department of Justice Center for Biological Diversity Environment & Natural Resources Division P.O. Box 11374 Wildlife & Marine Resources Section Portland, OR 97211-0374 Ben Franklin Station Tel: 971-717-6404 P.O. Box 7611 Washington, DC 20044-7611 Tel: (202) 305-0500 Fax: (202) 305-0275 Counsel for Plaintiffs Counsel for Federal Defendants On April 7, 2022, the parties submitted a Second Settlement Agreement in the above captioned case resolving any remaining claims in Counts 1, 2, and 3 of the complaint. Good cause having been shown, it is hereby ORDERED that Plaintiffs’ deadline to file a motion for attorneys’ fees and costs and a bill of costs shall be extended to ninety (90) days from the Court’s order effectuating the Second Stipulated Partial Settlement Agreement. Dated: April 13, 2022 fanadaeB Qenting ichard Seeborg for Saundr#Brown Armstrong United States District Judge