New Jersey v. Environmental Protection Agency

687 F.3d 386, 402 U.S. App. D.C. 53, 2012 WL 2948505, 2012 U.S. App. LEXIS 14878
CourtCourt of Appeals for the D.C. Circuit
DecidedJuly 20, 2012
Docket05-1097, 05-1104, 05-1116, 05-1118, 05-1158, 05-1159, 05-1160, 05-1162, 05-1163, 05-1164, 05-1167, 05-1174, 05-1175, 05-1176, 05-1183, 05-1189, 05-1263, 05-1267, 05-1270, 05-1271, 05-1275, 05-1277, 06-1211, 06-1220, 06-1231, 06-1287, 06-1291, 06-1293, 06-1294
StatusPublished
Cited by4 cases

This text of 687 F.3d 386 (New Jersey v. Environmental Protection Agency) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
New Jersey v. Environmental Protection Agency, 687 F.3d 386, 402 U.S. App. D.C. 53, 2012 WL 2948505, 2012 U.S. App. LEXIS 14878 (D.C. Cir. 2012).

Opinions

Opinion for the Court filed PER CURIAM.

Concurring opinion filed by Circuit Judge BROWN.

PER CURIAM:

In our earlier decision in this case, New Jersey v. EPA, 663 F.3d 1279 (D.C.Cir. 2011), we held that Movants, a group of Native American tribes and tribal associations who intervened on behalf of petitioners in the underlying Clean Air Act litigation, were entitled to fees and costs under section 307(f) of the Act. When the parties were unable to agree on the amount of fees, Movants filed an updated motion seeking $369,027.25, including compensation for 1,181 hours of work and for costs. For the reasons set forth below, we agree with EPA that the fee request is excessive and thus award substantially less than Movants seek.

Movants “bear the burden of demonstrating the reasonableness of each element of their fee request.” Am. Petroleum Inst. v. EPA, 72 F.3d 907, 912 (D.C.Cir.1996) (API). To calculate a reasonable fee, we use the lodestar method, multiplying a reasonable rate by the reasonable number of hours. See id.; see also Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). EPA does not object to Movants’ proposed hourly rates, and in order to simplify things recommends that we use a flat rate of $305,125 (an average it calculates by dividing the total award Movants seek by the number of hours they claim). Because Movants do not object, we shall base our award on $305,125 per hour. Moving on to the second issue, the reasonable number of hours, we must closely scrutinize billing [390]*390entries “in light of the ‘reasonable’ and ‘appropriate’ standards set forth in the statute,” Michigan v. EPA 254 F.3d 1087, 1090 (D.C.Cir.2001) (per curiam) (quoting 42 U.S.C. § 7606(f)), recognizing that “items of expense or fees that may not be unreasonable between a first class law firm and a solvent client[ ] are not always supported by indicia of reasonableness sufficient to allow us justly to tax the same against the United States.” API, 72 F.3d at 912 (alteration and internal quotation marks omitted). “[Supporting documentation must be of sufficient detail and probative value to enable the court to determine with a high degree of certainty that such hours were actually and reasonably expended[.]” Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 970 (D.C.Cir.2004) (internal quotation marks omitted). Where “petitioners have not carried their burden,” this court “make[s] adjustments,” reducing the award as appropriate. API, 72 F.3d at 912; see also Envtl. Def. Fund, Inc. v. EPA, 672 F.2d 42, 54 (D.C.Cir.1982) (“[Ajppellate judges are themselves experts in assessing the reasonableness of an attorney’s fee award, and ... the appellate court may independently review the record, or itself set the fee.” (omission and internal quotation marks omitted)).

With these principles in mind, we consider the reasonableness of the hours Movants seek for each category of tasks.

Initial case preparation: Movants request compensation for 79.75 hours of initial case preparation. EPA argues that Movants’ billing records are vague and urges us to award fees for only 20 hours. We agree with EPA. Movants’ “generic” time records — e.g., “[r]eview[ing] case materials,” and “[rjeview of key strategy issues and mercury materials,” each for eight hours — “are inadequate to meet a fee applicant’s heavy obligation to present well-documented claims.” Role Models Am., Inc., 353 F.3d at 971 (internal quotation marks omitted). Seeking to remedy this lack of specificity, Movants have submitted declarations explaining that the attorneys were working to “comprehend the scientific, factual and legal issues that were central to the case,” and listing some specific materials read. Kanji Reply Decl. ¶ 40. Although such declarations can offer some degree of support, see In re Segal, 145 F.3d 1348, 1353 (D.C.Cir.1998) (per curiam), they carry significantly less weight than specific contemporaneous records and fail to establish with the requisite “high degree of certainty,” Role Models Am., Inc., 353 F.3d at 970 (internal quotation marks omitted), that all the requested hours were reasonable. We shall thus reduce the compensable hours to the 20 EPA suggests.

Intervention motion: Movants request fees for 35 hours of partner time spent on their ultimately unopposed motion to intervene. Urging us to award compensation for only 15 hours, EPA insists that Movants’ request is excessive for an unopposed motion and that the work should have been done by attorneys billing at lower rates. Again, we agree. Although the fact that the motion was ultimately unopposed would not be dispositive if the lack of opposition was unforeseeable, see API, 72 F.3d at 912 (“It is not necessary that a fee-petitioning client and its attorney have acted with the 20/20 acuity of hindsight in developing their arguments in order to collect attorneys’ fees.”), Movants could have saved a great deal of time by first asking EPA whether it would oppose the motion. Responding to EPA’s second point, Movants explain that their law firm, Kanji & Katzen, used a partner for the motion because the associates were “extremely busy.” Kanji Reply Decl. ¶ 33. This justification is entirely unacceptable. Indeed, we suspect that had the firm been [391]*391charging a private client for these hours, it would have billed the partner time at the hourly rate of the “extremely busy” associates. The taxpayers are surely entitled to the same courtesy. Accordingly, we shall award compensation for the 15 hours that EPA believes reflects the value of the work performed.

Administrative proceedings: Movants request compensation for 36.5 hours spent preparing comments in pre-litigation administrative proceedings. EPA argues that time spent in administrative proceedings is never compensable. But we need not resolve this dispute because Movants’ administrative work—challenging an ancillary regulation—had nothing to do with them efforts as intervenors, the only activity that entitles them to fees. See New Jersey, 663 F.3d at 1284 (explaining that Tribal Movants are entitled to fees for their “role as intervenors,” and distinguishing that from “their role as petitioners”); see also API, 72 F.3d at 913 (denying “fees [that] are not sufficiently connected to the litigation at issue to require the taxpayers to reimburse them”). Accordingly, we shall deny this portion of Movants’ request.

Scheduling and coordinating with other parties: Movants seek fees for 29 hours spent on the briefing schedule, docketing statement and statement of issues, and coordinating with other parties as to these matters. EPA believes that only 15 hours are justified. As is the case with many of Movants’ billing records, the records regarding these activities lack the specificity needed not only to justify the full amount sought for these simple tasks, but also to assure us that no duplication occurred between Movants’ efforts and those of the petitioners. See Role Models Am., Inc.,

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687 F.3d 386, 402 U.S. App. D.C. 53, 2012 WL 2948505, 2012 U.S. App. LEXIS 14878, Counsel Stack Legal Research, https://law.counselstack.com/opinion/new-jersey-v-environmental-protection-agency-cadc-2012.