Public Interest Research Group of New Jersey, Inc. v. Windall

51 F.3d 1179, 1995 WL 156404
CourtCourt of Appeals for the Third Circuit
DecidedApril 10, 1995
DocketNos. 93-5771, 94-5059
StatusPublished
Cited by32 cases

This text of 51 F.3d 1179 (Public Interest Research Group of New Jersey, Inc. v. Windall) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Public Interest Research Group of New Jersey, Inc. v. Windall, 51 F.3d 1179, 1995 WL 156404 (3d Cir. 1995).

Opinion

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

We have before us an appeal and a cross-appeal from an order of the United States District Court for the District of New Jersey awarding counsel fees to the appellants, the Public Interest Research Group of New Jersey, Inc., Friends of the Earth, Inc. and the Pennsylvania Public Interest Research Group, Inc. (collectively “PIRG”), as prevailing parties under the attorney fee shifting provision of the Clean Water Act, 33 U.S.C.A. § 1365(d) (West Supp.1994). PIRG questions the fifty percent negative multiplier the district court applied to its initial fee request and the denial of its application for counsel fees and expenses incurred in litigating the initial fee request. Appellee, the United States Air Force (“Air Force”), cross-appeals. It argues that the district court used an incorrect market to calculate PIRG’s award and failed to deduct duplicative, unreasonable and excessive time in determining the lodestar.1

The principles governing attorney fee awards are set out in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). Applying them, we conclude that the district court erred in adopting a flat fifty percent negative, multiplier. We will therefore vacate its award of attorney fees and remand for further proceedings consistent with this opinion. Because the district court’s order denying PIRG any of the fees it incurred in litigating the fee dispute was premised on the amount it awarded in the underlying citizens’ suit, we will also vacate that order and direct the district court to reconsider this fee request after it reealcu-[1182]*1182lates the amount due PIRG for legal services it incurred in the underlying citizens’ suit.

On the Air Force’s cross-appeal, we will affirm the district court’s determination that the relevant legal market for calculating the lodestar is the District of New Jersey, and its conclusion that attorneys’ time reasonably spent in preparing a statutorily required notice of intent is reimbursable. Finally, we suggest that the district court, on remand, should consider the Air Force’s objections to PIRG’s time charges, determine whether they are reasonable and make appropriate findings to support that determination.

I. Background

In May 1990, PIRG filed a citizens’ suit against the Air Force in the district court, located in Trenton, New Jersey. The Washington, D.C. public interest law, firm of Ter-ris, Pravlik & Wagner represented PIRG. PIRG claimed that the Air Force violated the National Pollutant Discharge Elimination System and New Jersey Pollutant Discharge Elimination System (“NPDES/NJPDES”) permits2 for McGuire Air Force Base. PIRG sought: (1) a declaratory judgment that the Air Force had violated and continued to violate the Federal Water Pollution Control Act, 33 U.S.C.A. §§ 1311, 1318, 1342 (West 1986 & Supp.1994); (2) injunctive relief restraining the Air Force from continuing to operate McGuire Air Force Base in violation of its NPDES permit; (3) an order that the Air Force comply with, and provide PIRG with copies of, discharge monitoring reports and similar documents; and (4) civil monetary penalties pursuant to 33 U.S.C.A. §§ 1319(d), 1365(a) (West 1986 & Supp. 1994).3

While PIRG’s suit was pending, the Air Force and the Environmental Protection Agency (“EPA”) agreed to a consent order in a separate EPA action against both the Air Force and Army.4 The district court approved this order. Under the consent order, the Air Force promised to design and construct a tertiary sewage treatment plant by July 31, 1994.5 It also promised to “attain compliance with the final effluent limitations the NJPDES permit(s)” required by November 30, 1994.. Appendix (“App.”) at 246. In addition, the consent order imposed interim effluent discharge limitations and required the Air Force to submit progress reports on compliance to the EPA and the New Jersey Department of Environmental Protection (“NJDEP”). The consent order stated it “[did] not constitute a waiver from compliance with or a modification of the effective terms and conditions of the [Air Force’s] permits, which remain in full force and effect.” Id.

After entry of the EPA consent order, the Air Force offered to settle with PIRG, but never made a formal settlement offer under Rule 68 of the Federal Rules of Civil Procedure.6 PIRG rejected the Air Force’s offer because it failed to provide all the relief [1183]*1183PIRG wanted and did not admit liability. PIRG did make a counteroffer that would have required the Air Force to pay civil penalties for every future permit violation. The Air Force contends that PIRG’s primary reason for declining its offer was the Air Force’s refusal to pay civil penalties or restitution for the environmental damage PIRG claimed was the result of the Air Force’s noncompliance with its discharge permits.

Following oral argument, the district court granted PIRG’s motion for summary judgment on liability and issued a permanent injunction against the Air Force. See Public Interest Research Group of New Jersey, Inc. v. Rice, 774 F.Supp. 317, 318 (D.N.J.1991). It ordered the Air Force to: (1) comply with the EPA consent order; (2) maximize compliance with its current NJPDES permit, including applicable effluent limitations; (3) complete all remedial measures proposed by the Air Force in response to one of PIRG’s interrogatories; (4) undertake all necessary maintenance and repairs at the existing plant to continue its level of operation; (5) comply with all reporting and monitoring requirements to the EPA and NJDEP; and (6) give PIRG copies of all reports and operating logs submitted to the NJDEP and EPA for four years after entry of the court’s order. Id. at 330-31. The district court then determined that the consent order in the EPA’s action did not fully vindicate the citizens’ rights that PIRG asserted because the consent order did not require the Air Force to comply with its permits. Id. at 327. It stated: “[This order] represents the vindication of the plaintiffs’ right to bring suit when the [EPA] cannot or will not protect the environment.” Id. at 326.

The district court stayed the Air Force’s motion for summary judgment on PIRG’s claim for civil penalties on the defense of sovereign immunity pending decision in Department of Energy v. Ohio, 503 U.S. 607, 112 S.Ct. 1627, 118 L.Ed.2d 255 (1992). After the Supreme Court held that sovereign immunity barred recovery of monetary penalties from the United States in citizens’ suits under the Clean Water Act, the Air Force renewed its motion to deny PIRG’s claim for civil penalties. Id. at 617-21, 112 S.Ct. at 1635-36. Instead of deciding the motion, the court allowed PIRG voluntarily to withdraw its claim for civil penalties, pursuant to Federal Rule of Civil Procedure 41(a)(2), and thereafter denied reconsideration.

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Cite This Page — Counsel Stack

Bluebook (online)
51 F.3d 1179, 1995 WL 156404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/public-interest-research-group-of-new-jersey-inc-v-windall-ca3-1995.