The Coalition to Protect Puget Sound Habitat v. US Army Corps of Engineers

• Court: District Court, W.D. Washington
• Decided: September 6, 2022
• Docket: 2:16-cv-00950
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8 THE COALITION TO PROTECT PUGET Case No. C16-0950RSL 9 SOUND HABITAT, 10 ORDER GRANTING Plaintiff, ATTORNEY FEES AND 11 v. EXPENSES 12 U.S. ARMY CORPS OF ENGINEERS, et al., 13 Defendant. 14 and 15 TAYLOR SHELLFISH COMPANY, INC., 16 Intervenor - Defendant. 17

18 This matter comes before the Court on plaintiff’s motion for attorney fees and expenses 19 20 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d)(1)(A) (Dkt. # 99). Having 21 reviewed plaintiff’s motion as well as plaintiff’s supplemental memorandum (Dkt. # 117), 22 defendant’s response (Dkt. # 121), plaintiff’s reply (Dkt. # 123), and supporting declarations 23 24 filed by the parties (Dkt. # 100-103, 118-120, 122), the Court finds oral argument unnecessary 25 and holds that plaintiff is entitled to fees and expenses under the EAJA as enumerated below. 26

28 1 BACKGROUND 2 When a party prevails in a civil action against the United States or any of its agencies and 3 the prevailing party properly requests an award of attorney fees and expenses, the EAJA 4 requires the Court to award fees and expenses unless it finds “the position of the United States 5 6 was substantially justified” or “special circumstances make an award unjust.” 28 U.S.C. 7 § 2412(d)(1-3). 8 To properly request an award of fees and expenses, a party must submit an application to 9 10 the Court within thirty days of final judgment in the case. 28 U.S.C. § 2412(d)(1)(B). The party 11 must show it has prevailed in the litigation, itemize fees and expenses sought, and specifically 12 allege that the position of the United States was not substantially justified. Id. In addition, the 13 14 party requesting fees and expenses must meet certain criteria regarding its net worth and, if 15 relevant, its corporate form. 28 U.S.C. § 2412(d)(2)(B). 16 On June 22, 2016, plaintiff filed a civil action against the U.S. Army Corps of Engineers 17 18 alleging the Corps had violated the National Environmental Policy Act (NEPA), the Clean 19 Water Act (CWA), and the Administrative Procedure Act (APA) when it authorized certain 20 commercial shellfish aquaculture operations in Washington State through a reissuance of 21 22 Nationwide Permit 48 (NWP 48). Dkt. # 1. The action challenged the version of NWP 48 that 23 was issued on February 21, 2012. 24 On January 6, 2017, the Corps reissued NWP 48. Dkt. # 25. On June 5, 2017, plaintiff 25 26 filed a supplemental complaint asserting that the previously alleged violations of NEPA, the 27 CWA, and the APA continued with the Corps’ 2017 permit reissue. Id. 28 1 On October 10, 2019, this Court issued an order finding NWP 48 unlawful in the State of 2 Washington and holding that the Corps had violated NEPA, the CWA, and the APA in its 3 issuance of NWP 48. Dkt. # 61. In reaching its decision, the Court considered both the 2012 and 4 5 2017 issuances of NWP 48, specifically noting that the Corps had failed to properly account for 6 “cumulative impacts” when it reissued NWP 48 in 2017 and explaining how those cumulative 7 impacts have roots in the version of NWP 48 that was issued in 2012. Dkt. # 61 at 12-14. The 8 9 Court then vacated NWP 48 in the State of Washington, commanded the Corps to comply with 10 the CWA and NEPA when processing commercial shellfish aquaculture permits in the state, and 11 instructed the Corps to begin processing shellfish permits on an individual basis “as 12 13 expeditiously as possible.” Dkt. # 89. The vacation of NWP 48, the command to comply with 14 the CWA and NEPA, and the instruction to begin processing permits on an individual basis 15 were all among the specific relief sought by plaintiff. Dkt. # 25. 16 17 The Corps filed a notice of appeal to the Ninth Circuit on August 10, 2020. Dkt. # 96. 18 Ten days later, on August 20, 2020, the Corps voluntarily dismissed its Ninth Circuit appeal. 19 Dkt. # 98. Intervenor Taylor Shellfish Company pursued its appeal to the Ninth Circuit, 20 21 however. Dkt. # 90. On February 11, 2021, the Ninth Circuit issued a memorandum in that 22 appeal affirming the judgment of this Court. Dkt. # 107. The Ninth Circuit stated that “several” 23 of the Corps’ rationales for predicting minimal or insignificant environmental harms from the 24 25 2017 version of NWP 48 were “illogical.” Id. 26 27 28 1 On September 18, 2020, less than thirty days after the Corps voluntarily dismissed its 2 Ninth Circuit appeal, plaintiff filed an initial motion seeking fees and expenses under the EAJA. 3 Dkt. # 99. 4 5 DISCUSSION 6 The Corps does not contest that plaintiff is the prevailing party in this dispute. See 7 generally Dkt. # 121. The Corps does not claim any impropriety in the timing or form of 8 plaintiff’s motion for EAJA fees and costs. The Corps does not claim plaintiff has failed to meet 9 10 the EAJA eligibility requirements for receiving fees and expenses. The Corps does not ask this 11 Court to find that “special circumstances” make an award in this case unjust. What the Corps 12 argues in its response is that there should be no award of fees or costs because the Corps’ 13 14 position was “substantially justified” or, in the alternative, that the award should be no more 15 than the $334,258.11 the Corps has calculated as being necessary to reimburse plaintiff for 16 reasonable hourly rates and billable hours. Id. at 2. 17 18 A. The government bears the burden of proving it acted with substantial justification that had a “reasonable basis in both law and fact.” 19 In their briefs, both plaintiff and the Corps cite Pierce v. Underwood for the proposition 20 21 that “substantially justified” means: “‘[J]ustified in substance or in the main’—that is, justified 22 to a degree that could satisfy a reasonable person.” 487 U.S. 552, 565 (1988). Put another way, 23 the government’s position must have a “reasonable basis in both law and fact.” Id. at 565. 24 25 The Corps claims this Court may find reasonableness and substantial justification “so 26 long as the government’s arguments are not ‘feeble’ or ‘frivolous’ and have ‘a reasonable basis 27 28 1 in law and fact.’” Dkt. # 121 at 4. But the Corps’ pin cite for this proposition reveals no such 2 holding in Pierce v. Underwood, and in fact the Court in Pierce stated: “To be ‘substantially 3 justified’ means, of course, more than merely undeserving of sanctions for frivolousness; that is 4 5 assuredly not the standard for Government litigation of which a reasonable person would 6 approve.” Pierce, 487 U.S. 552 at 565 (italics added). This Court will thus hold the Corps to a 7 higher standard than merely lacking frivolousness. 8 9 It is the government’s burden to prove that its position was substantially justified. Love v. 10 Reilly, 924 F.2d 1492, 1495 (9th Cir. 1991). This fact is obscured in the government’s response, 11 which cites Love v. Reilly as supporting the government’s contention that compensation cases 12 13 under the EAJA place “the burden on the applicant to demonstrate entitlement to such an 14 award.” Dkt. # 121 at 2. In context, the government’s argument appears to suggest that plaintiff 15 has the burden of proof on substantial justification, but as stated above, that is not the case. The 16 17 government’s pin cite on this issue directs to the following statement in Love: “The party 18 seeking fees has the burden of establishing its eligibility.” That statement is referencing the 19 basic eligibility requirements under § 2412(d)(2)(B) for parties seeking fees—requirements 20 21 related to, for example, a party’s net worth or corporate form. The relevant rule on the burden of 22 proof for substantial justification comes shortly thereafter, with the Ninth Circuit stating: “The 23 burden of proving the special circumstances or substantial justification exception to the 24 25 mandatory award of fees under the EAJA rests with the government.” Love, 942 F.2d at 1495. 26 27 28 1 B. The Court must look to the record, including the Corp’s issuance of NWP 48 and its subsequent litigation position, when determining whether the government was 2 substantially justified. 3 The EAJA states: “Whether or not the position of the United States was substantially 4 justified shall be determined on the basis of the record (including the record with respect to the 5 6 action or failure to act by the agency upon which the civil action is based).” 28 U.S.C. 7 § 2412(d)(1)(B). Ninth Circuit precedent defines “the position of the United States” as including 8 “both an agency’s action or failure to act” and “the government’s litigation position.” Oregon 9 10 Nat. Res. Council v. Madigan, 980 F.2d 1330, 1331 (9th Cir. 1992). Here, the Corps’ decision to 11 reissue NWP 48 is an “underlying action” by a government agency that must be considered 12 along with the government’s litigation position. Id. at 1331. 13 14 C. Neither the reissuance of NWP 48 nor the Corps’ litigation position were substantially justified. 15 The Corps argues that its position had a reasonable basis in both law and fact “because 16 17 courts have routinely upheld other Clean Water Act permits in similar circumstances.” 18 Dkt. # 121 at 4. The Court will assume the Corps is making this argument in support of both its 19 NWP 48 decisions and its subsequent litigation position, although the Corps failed to specify in 20 21 its response whether the argument was offered in support of one, the other, or both. Id. 22 As proof of its contention that “courts have routinely upheld Clean Water Act permits in 23 similar circumstances,” the Corps cites three appeals court cases. Id. Only one of these cases is 24 25 from the Ninth Circuit. Id. While that case, Snoqualmie Valley Pres. All. v. U.S. Army Corps of 26 Eng’rs, did involve nationwide permits issued by the Corps, the case turned in relevant part on a 27 28 1 “verification letter” issued by the Corps in May 2009, confirming that a plan by Puget Sound 2 Energy (PSE) to discharge less than half an acre of fill into the Snoqualmie River as a flood- 3 mitigation measure was allowed under three different nationwide permits. 683 F.3d 1155, 1157- 4 5 1158, 1161 n.4 (9th Cir. 2012). While this Court does not belittle the potential environmental 6 impact of less than half an acre of fill in a single location, the present case involved concerns 7 about environmental impacts on a far greater scale, potentially affecting 72,300 acres of 8 9 tidelands throughout the State of Washington. Dkt. # 61 at 14 (citing an assessment by the 10 Corps’ Seattle District). More importantly, the present case involved a successful challenge to 11 the process by which the Corps reissued a nationwide permit. In Snoqualmie Valley Pres. All., 12 13 the issue was not the process that created the relevant nationwide permits, but whether the Corps 14 erred in issuing a verification letter confirming that PSE’s project was allowed under existing, 15 unchallenged permits. 683 F.3d 1155 at 1159. The Corps determined the fill project was allowed 16 17 under those permits, and the Ninth Circuit, in upholding the Corps’ interpretation of its own 18 permits, noted that the regulatory scheme for nationwide permits is based, in part, on an 19 assumption that any nationwide permit will undergo “extensive” NEPA analysis “at the time it 20 21 is promulgated.” Id. at 1158. This extensive analysis leads to appropriate nationwide policies 22 that allow the Corps to later make quick determinations about individual projects around the 23 country posing “minimal environmental impacts, such as those involving the discharge of less 24 25 than half an acre of fill.” Id. at 1163. In the present case, the Court held that the creation of 26 NWP 48 did not involve an extensive enough process to produce an appropriate nationwide 27 28 1 policy that could serve as the baseline for individual project decisions in the State of 2 Washington. Dkt. # 61. Therefore, Snoqualmie Valley Pres. All. does not involve circumstances 3 similar enough to those in the present case to offer a “reasonable basis in both law and fact” for 4 5 the Corps’ position. Pierce, 487 U.S. 552 at 565. 6 The Corps also argues that NWP 48 was consistent with Congress’s intent in creating the 7 nationwide permit system. Dkt. # 121 at 5. But this argument is unavailing because Congress 8 9 also acted with intent in creating NEPA, the CWA, and the APA, and this Court found those 10 acts were insufficiently adhered to in the creation of NWP 48. Dkt. # 61. 11 While the government’s arguments fail to show the government’s actions were 12 13 substantially justified, the Court must examine the record as well. 28 U.S.C. § 2412(d)(1)(B). 14 When this Court concluded NWP 48 was unlawful, it examined whether the Corps’ underlying 15 assumptions in issuing NWP 48 had “a substantial basis in fact” when it came to the State of 16 17 Washington, and whether the Corps’ permit decision was “based on relevant evidence that a 18 reasonable mind might accept as adequate to support the agency’s conclusion.” Dkt. # 61. The 19 Court found “inadequate” analysis, “untenable argument,” and, broadly, that the Corps’ 20 21 “prediction that the issuance of NWP 48 would have minimal individual and cumulative impacts 22 on the environment . . . is not based on relevant evidence that a reasonable mind might accept as 23 adequate to support the agency’s conclusion.” Id. In other words, the Corps’ decision to issue 24 25 NWP 48 did not have a reasonable basis in fact. In the context of this case, the decision was 26 unsupported by the facts and unreasonable as a matter of law. Therefore, the record shows that 27 28 1 the Corps’ underlying permitting action does not meet the standard for substantial justification, 2 which requires a “reasonable basis in both law and fact.” Pierce, 487 U.S. 552 at 565. 3 The Corps is correct in arguing that a finding of unlawfulness as to NWP 48 does not, 4 5 ipso facto, make the Corps’ litigation position unjustified. Dkt. # 121. See Kali v. Bowen, 854 6 F.2d 329, 332 (9th Cir. 1988) (stating that “The government’s failure to prevail does not raise a 7 presumption that its position was not substantially justified”). In the Ninth Circuit, a court’s 8 9 analysis of the government’s litigation position should begin with an “examination of the 10 position on the merits” and then focus “upon ‘extraneous circumstances bearing upon the 11 reasonableness of the government’s decision to take the case to trial.’” Oregon Nat. Res. 12 13 Council, 980 F.2d 1330 at 1331-1332 (quoting Kali, 854 F.2d 329 at 332). As explained above, 14 the position on the merits was not substantially justified because the Corps’ prediction of 15 minimal impacts from the reissuance of NWP 48 did not have a reasonable basis in law or fact. 16 17 Dkt. # 61. Nor does the record in this matter suggest that the government’s defense of the Corps’ 18 minimal impact determination was substantially justified where the Corps expressly 19 acknowledged that commercial shellfish activities have negative effects on the environment. Id. 20 21 at 10. When looking to extraneous circumstances, “[p]erhaps the most important” extraneous 22 circumstance for a court to consider is “the existence of precedents construing similar statutes or 23 similar facts.” Kali, 854 F.2d 329 at 332. A past “string of successes” using the government’s 24 25 litigation position could be “indicative” of substantial justification for taking the position 26 advanced in a given case. Id. at 332 (quoting Pierce, 487 U.S. 552 at 569). As discussed above, 27 28 1 the government bears the burden of proving substantial justification and has not offered any 2 relevant Ninth Circuit precedents of this sort. As a result, the Court finds that the government’s 3 litigation position was not substantially justified. 4 5 D. The substantial justification exception to EAJA awards does not apply in this case. 6 Because both the underlying government action in reissuing NWP 48 and the 7 government’s litigation position in defending NWP 48 were not substantially justified, the Court 8 finds that the government has not triggered the substantial justification exception to the EAJA’s 9 10 mandatory award of fees and costs. 11 E. Plaintiff is entitled to an EAJA award in the amount of $710,143.91. 12 Given the above findings, the Court “shall” award “reasonable” fees and expenses to the 13 plaintiff. 28 U.S.C. § 2412(d)(1)(A), (d)(2)(A). Plaintiff requests an award of $787,585.41. The 14 15 government argues the appropriate amount is $334,258.11. Dkt. # 121, 123. 16 While these are starkly different sums, arrived at through very different appraisals of 17 what is reasonable, both parties repeatedly ground their arguments in the same precedent, 18 19 Hensley v. Eckerhart, 461 U.S. 424 (1983). In that case, the Court discussed how to arrive at 20 appropriate fee awards under the Civil Rights Act and described what is known as the “lodestar 21 method,” a straightforward calculation in which “a reasonable fee is the number of hours 22 23 reasonably expended on the litigation multiplied by a reasonable hourly rate.” Id. at 433. The 24 present case involved a major litigation effort, spanning four years before the Court’s Order 25 Vacating NWP 48 in the State of Washington (Dkt. # 89) and concerning highly technical issues 26 27 28 1 of environmental and regulatory policy. As the Henlsey court stated: “A request for attorney’s 2 fees should not result in a second major litigation.” 461 U.S. 424 at 437. 3 The Corps’ challenges to plaintiff’ proposed award amount are numerous, but they can be 4 5 gathered into two broad categories: (1) challenges to the hourly rates charged by plaintiff and 6 (2) challenges to the number of hours charged by plaintiff. 7 1. The proposed hourly rates are reasonable given the specialized skill of 8 plaintiff’s attorneys and the prevailing rates for such work in the Seattle area. 9 Under the EAJA, “attorney fees shall not be awarded in excess of $125 per hour unless 10 the court determines that an increase in the cost of living or a special factor, such as the limited 11 12 availability of qualified attorneys for the proceedings involved, justifies a higher fee.” 28 U.S.C. 13 § 2412(d)(2)(A). In the Ninth Circuit, the statutory maximum rate for reimbursement under the 14 EAJA has been adjusted for cost of living increases over the last decade, rising to $217.54 for 15 16 2021, the most recent year in which there were filings in this case. See U.S. Courts for the Ninth 17 Cir., Statutory Maximum Rates Under EAJA, https://www.ca9.uscourts.gov/attorneys/statutory- 18 maximum-rates/. In Pierce, the Court explained that attorneys may be compensated above the 19 20 EAJA statutory maximum if they are “qualified for the proceedings in some specialized sense,” 21 meaning they have “some distinctive knowledge or specialized skill needful for the litigation in 22 question.” 487 U.S. 552 at 572. Attorneys specializing in environmental litigation meet this test. 23 24 See Love, 924 F.2d 1492 at 1496 (declaring that “Environmental litigation is an identifiable 25 practice specialty that requires distinctive knowledge”). 26 27 28 1 The Court therefore has no trouble finding that plaintiff’s attorneys Karl G. Anuta, 2 Thane Tienson, and Mike J. Sargetakis are eligible for compensation above the EAJA statutory 3 maximum given their experience with complex federal environmental litigation and the fact that 4 5 this case required precisely that specialty. Dkt. # 100, 101, 103. The Court also is confident, 6 based on the declaration of Coalition to Protect Puget Sound Habitat Executive Director Laura 7 Hendricks (Dkt. # 102), that these attorneys’ particular skill sets were not “available elsewhere 8 9 at the statutory rate.” Love, 924 F.2d 1492 at 1496. 10 Plaintiff has offered declarations from Seattle environmental attorneys Paul Kampmeier 11 and Thomas Newlon, both of whom attest that the requested rates for plaintiff’s attorneys—$640 12 13 per hour for Mr. Anuta, $650 per hour for Mr. Tienson, and $300 for Mr. Sargetakis—are in line 14 with prevailing rates in the Seattle area for environmental lawyers with similar skill, experience, 15 and reputation. Dkt. # 119, 120. The Court, having considered the vigorous arguments around 16 17 these proposed rates, as well as the parties’ competing models and analyses bearing on the rate 18 question, finds that plaintiff’s proposed rates are reasonable. In making this determination, the 19 Court is satisfied that plaintiff has met its burden to produce evidence showing “that the 20 21 requested rates are in line with those prevailing in the community for similar services by lawyers 22 of reasonably comparable skill, experience, and reputation.” Sorenson v. Mink, 239 F.3d 1140, 23 1145 (9th Cir. 2001) (citing Blum v. Stenson, 465 U.S. 886, 895 n.11 (1984)). In coming to its 24 25 conclusion, the Court is also mindful of the Ninth Circuit’s admonition in Moreno v. City of 26 Sacremento that “[m]odeling law firm economics”—an endeavor that appears to have made its 27 28 1 way into the rate dispute in this case—“drifts far afield of the Hensley calculus and the statutory 2 goal of sufficiently compensating counsel in order to attract qualified attorneys” for public 3 interest work. 534 F.3d 1106, 1115 (9th Cir. 2008). See also Hensley, 461 U.S. 424 at 435 4 5 (“Where a plaintiff has obtained excellent results, his attorney should recover a fully 6 compensatory fee . . . and indeed in some cases of exceptional success an enhanced award may 7 be justified.”) The Court is likewise mindful of Moreno’s instruction to balance the need for a 8 9 fully compensatory fee against the need to avoid “a windfall” for plaintiff. 534 F.3d at 1111. 10 The Court is satisfied that neither the rates sought by plaintiff’s attorneys nor the $145 per hour 11 rate sought for plaintiff’s law clerks offends this balancing test. 12 13 The Court further finds it reasonable to calculate the fees in this case at “one constant rate 14 per lawyer,” as proposed by plaintiff. Dkt. # 117. See Greenpeace, Inc. v. Stewart, No. 17- 15 35945, 2020 WL 2465321, at *6 (9th Cir. May 12, 2020) (“In general, applying different hourly 16 17 rates to different aspects of a litigation risks turning the fee award proceedings into a second 18 major litigation, contrary to the Supreme Court’s admonition in Hensley”). For similar reasons, 19 the Court disagrees with the Corps’ contention that plaintiff must be compensated at statutory 20 21 rates for the hours spent working on their EAJA fee petition because, in the Corps’ estimation, 22 “such work does not require specialized or distinctive knowledge within the meaning of EAJA.” 23 Dkt. # 121 at 12. In Greenpeace, the government made the same argument and the Ninth Circuit 24 25 found the argument “lacks merit” because adhering to its logic would risk creating a “second 26 major litigation” and make EAJA fee cases “unwieldy and time-consuming.” No. 17-35945, 27 28 1 2020 WL 2465321, at *6 (citing INS v. Jean, 496 U.S. 154, 161-62 (1990)). The Ninth Circuit 2 also found the government’s argument in Greenpeace “contrary to the Supreme Court’s 3 instruction that ‘the EAJA—like other fee-shifting statutes—favors treating cases an inclusive 4 5 whole, rather than as atomized line-items.’” Id. 6 Therefore, the hourly rates for the lodestar calculation in this case shall be: 7 Karl G. Anuta: $640 8 9 Thane Tienson: $650 10 Mike J. Sargetakis: $300 11 Law clerks: $145 12 13 2. The Corps’ objections to the number of hours billed and the way they billed them require some adjustments to the claimed fees. 14

15 a. Block billing. 16 17 On the question of how many hours should reasonably be charged, the Corps accuses 18 plaintiff of “block billing.” Here, again, both parties agree on the precedent, Welch v. Metro. 19 Life Ins. Co., 480 F.3d 942, 945 n.2 (9th Cir. 2007), which defines block billing as “the time- 20 21 keeping method by which each lawyer and legal assistant enters the total daily time spent 22 working on a case, rather than itemizing the time.” Although the Corps has filed more than 170 23 pages of plaintiff’s annotated timesheets to demonstrate instances of block billing (Dkt. # 121- 24 25 1), the Corps has not shown that plaintiff failed to sufficiently itemize their billed time, nor has 26 the Corps shown that plaintiff failed to meet the Hensley requirement that billing records 27 “enable a reviewing court to identify distinct claims.” 461 U.S. 424 at 437. Many of the block 28 1 billings alleged by the Corps are for significantly less than “the total daily time spent working 2 on the case.” Welch, 480 F.3d 942 at 945 n.2. Often, the supposedly block-billed entries are for 3 less than a few hours or less than one hour. Dkt. # 121-1. Further, the alleged block-billings 4 5 overwhelmingly contain detailed descriptions of the work performed, thus allowing this Court to 6 “identify distinct claims.” Hensley, 461 U.S. 424 at 437. The Corps’ own example of alleged 7 block billing by plaintiff makes this point. Dkt. # 121 at 18. The one example of alleged block 8 9 billing highlighted in the Corps’ response is anomalous in that it spans ten days, but the billing 10 is attributed to a law clerk and the description of the clerk’s work makes clear, in context, that 11 the clerk was working on plaintiff’s NEPA, CWA, and APA claims. Id. The full description of 12 13 how the clerk’s time was spent, as cited by the Corps, reads: “Review 2012 & 2017 NWP 48 14 Decision Documents; Draft and provide Memo comparing both to KGA; Draft and provide 15 Memo on cumulative impact analysis comparisons specifically.” Id. This description of the 16 17 clerk’s work is considerably more detailed than the descriptions criticized in the Western 18 District of Washington block billing case the Corps cites as precedent. Id. See Sierra Club v. 19 BNSF Ry. Co., 276 F. Supp. 3d 1067, 1073 (W.D. Wash. 2017) (finding inappropriate block 20 21 billing where there were “numerous” billings bearing the vague description “case mngmt,” 22 leading the court to order a twenty percent reduction in those vaguely described, block-billed 23 hours). The Court therefore declines to order the twenty percent reduction requested by the 24 25 Corps for the allegedly block-billed hours. 26

27 28 1 b. Prevailing party. 2 The Corps also seeks a ten percent downward reduction in plaintiff’s hours because 3 plaintiff “did not prevail” on its challenge to the 2012 version of NWP 48. Dkt. # 121 at 18. The 4 5 Corps argues that plaintiff’s challenges to the 2012 NWP 48 and the 2017 NWP 48 represent 6 “distinctly different claims for relief that are based on different facts and legal theories.” Id. 7 Citing Hensley, the Corps contends that hours spent by plaintiff on claims related to the 2012 8 9 NWP 48 are therefore not compensable given that it was the 2017 NWP 48, and not the 2012 10 NWP, that this court declared unlawful. Id. See 461 U.S. 424 at 434. This analysis is simply 11 incorrect. As discussed above, plaintiff made the same claims in 2012 and 2017 about the 12 13 Corps’ decision to issue NWP 48 (namely, that the Corps’ actions violated NEPA, the CWA, 14 and the APA). This Court declared the 2017 version of NWP 48 unlawful in the State of 15 Washington—as opposed to the 2012 version—because, at the time of the Court’s ruling in 16 17 2019, it was the 2017 version of NWP 48 that was in effect, having superseded the 2012 18 version. This does not constitute a failure to prevail of the kind the Corps is describing, and 19 plaintiff’s original 2012 claims are not distinctly different from the claims plaintiff made in their 20 21 2017 supplemental complaint. Further, the Ninth Circuit tests for “whether claims are related or 22 unrelated under Hensley” is whether those claims “arose out of the same ‘course of conduct.’” 23 Schwarz v. Sec’y of Health & Hum. Servs., 73 F.3d 895, 903 (9th Cir. 1995). As explained 24 25 above, in reaching its 2019 decision to declare NWP 48 unlawful, this Court considered both the 26 2012 and 2017 issuances of NWP 48. Dkt. # 61 at 12-14. That was in part because the Corps’ 27 28 1 process for issuing the 2017 version of NWP 48 failed to properly account for “cumulative 2 impacts” on the environment that have roots in the Corps’ process for issuing the 2012 version 3 of NWP 48. Id. In other words, the 2012 and 2017 issuances of NWP 48 are part of the same 4 5 course of conduct. Therefore, the Court declines to order a 10 percent reduction in hours billed 6 by plaintiff before the 2017 NWP 48 was issued. For the same reasons, the Court disagrees with 7 the Corps’ contention that plaintiff’s billed hours “reaching as far back as 2013” are 8 9 unreasonable. Dkt. # 121 at 19. That plaintiff’s billed hours would reach back to 2013 is, in light 10 of the long course of conduct involved in this case, quite reasonable. 11 c. Hours spent responding to intervenors. 12 13 Pointing to Ninth Circuit precedent, the Corps argues that hours spent by plaintiff 14 responding to motions filed by intervenors are not compensable under the EAJA. Dkt. # 121 at 15 13 (citing Love, 924 F.2d 1492 at 1495-96). Plaintiff does not offer any contrary Ninth Circuit 16 17 precedent. Dkt. # 123 at 10. In Love, the Ninth Circuit held that awarding fees under the EAJA 18 for time spent opposing private intervenors would be “unjust,” where “the government did not 19 join the intervenors’ motion” and the accrued fees could not be shown to have arisen from 20 21 “opposing government resistance.” 924 F.2d 1492 at 1496. Although plaintiff argues that “at 22 virtually every phase of the litigation, the shellfish industry was in lock-step with the Corps’ 23 positions and vice-versa,” that does not mean—much less begin to prove—that in responding to 24 25 these private sector intervenors, plaintiff were in fact opposing government resistance. 26 Furthermore, the government did not join the intervenor motions that are cited in the Corps’ 27 28 1 response as generating $76,076.50 in legal bills claimed by plaintiff. Dkt. # 121 at 14-15. The 2 Court therefore grants the Corps’ request to reduce plaintiff’s award by $76,076.50. 3 d. Clerical or secretarial tasks. 4 5 Though it is a close call, the Court is ultimately unpersuaded by the Corps’ contention 6 that 136.25 hours claimed by plaintiff must be denied because they involved “purely clerical or 7 secretarial tasks.” Dkt. 121 at 15 (citing Missouri v. Jenkins, 491 U.S. 274, 288 n.10 (1989)). 8 9 Plaintiff makes a compelling argument that in the context of this complex, specialized litigation 10 involving a record with “hundreds of thousands of pages, on seven DVDs chock full of 11 documents in two overlapping sets of Bates numbers,” even tasks like creating an index “so that 12 13 it is functionally accessible to a litigator” or drafting a table of authorities that is compliant with 14 local court rules will necessarily involve a level of legal judgment that makes those endeavors 15 more than “purely clerical.” Dkt. 123 at 10. The Corps, for its part, points to Nadarajah v. 16 17 Holder, 569 F.3d 906, 921 (9th Cir. 2009), which deemed tasks ranging from “track package” to 18 “assemble and organize documents” to be clerical work, but did not offer any specific guidance 19 as to when the job of assembling and organizing documents (or creating “tables of contents and 20 21 authorities”) becomes so complex a task that it ceases to be clerical work. Dkt. # 121 at 15. 22 Lacking binding precedent on precisely when certain tasks involve such complexity and 23 necessitate such a degree of legal judgment that they cease being “purely clerical or secretarial 24 25 tasks,” this Court finds that the challenged hours, as described by the Corps in its response and 26 illuminated by plaintiff in its reply, were not for “purely clerical or secretarial” work. 27 28 1 e. Incorrectly submitted hours. 2 The parties agree that 2.1 hours submitted by plaintiff should not be compensated 3 because they relate to a different matter and, according to plaintiff, were submitted by mistake. 4 5 Dkt. # 121 at 16, 123 at 9. The Court will therefore reduce the award by the amount of the 6 requested fee for those 2.1 hours, which was $1,365. 7 f. The Court lacks sufficient information on the FOIA fee waiver issue. 8 9 The Corps suggests that plaintiff are trying to “have it both ways” because plaintiff asked 10 the Corps for a fee waiver for certain FOIA requests during litigation and plaintiff has now 11 submitted bills for the attorney hours spent working on the FOIA fee waiver issue. Dkt. # 121 at 12 13 16. However, the record does not make clear whether plaintiff’s request for a FOIA fee waiver 14 was ever granted by the Corps. Dkt. # 121, 123. Furthermore, the billing descriptions of the 15 contested time spent on this matter suggest plaintiff’s attorneys very well could have been 16 17 unsuccessful in getting a FOIA fee waiver, and thus could not be having it “both ways” at 18 taxpayer expense on this issue. Dkt. # 121, 121-1. Lacking sufficient information from the 19 parties, the Court declines to reduce the fee award based on the FOIA fee waiver issue. 20 21 g. Discussions with co-counsel at the Center for Food Safety. 22 The Corps claims that 3.6 hours billed by plaintiff for discussing a “Briefing page limit 23 issue” with co-counsel are not allowable because they are unreasonable. Dkt. # 121 at 17. 24 Plaintiff persuasively counters that the Ninth Circuit has approved of EAJA awards that include 25 26 billing for discussions with co-counsel. Dkt. # 123 at 11. See Nadarajah, 569 F.3d 906 at 919. 27 Therefore, the Court declines to remove those hours from the fee award. 28 1 h. After considering the challenges to hours billed, plaintiff are entitled to an EAJA award of $710,143.91. 2 3 Plaintiff requested an EAJA award of $787,585.41. This Court has already found the 4 hourly rates submitted by plaintiff for their lodestar calculation to be appropriate. Deducting for 5 the non-compensable hours plaintiff spent responding to intervenors in this case ($76,076.50) 6 7 and for the small number of hours plaintiff admitted were erroneously submitted ($1,365), the 8 Court arrives at an award amount of $710,143.91. 9 10 11 For all the foregoing reasons, plaintiff's motions for attorney fees and expenses under the Equal 12 Access to Justice Act (Dkt. # 99, 117, 123) are GRANTED in the amount of $710,143.91. 13 14 Dated this 6th day of September, 2022. 15 16 17 18 Robert S. Lasnik United States District Judge 19 20 21 22 23 24 25 26 27 28