Center for Environmental Health et al v. Pruitt et al

Filing 132

Order by Judge Richard Seeborg for Judge Saundra Brown Armstrong Granting 131 Motion for Extension of Time to File for Award of Attorneys' Fees and Litigation Expenses.(bns, COURT STAFF) (Filed on 7/8/2022)

1
2
3
4
5
6
7
8

Jonathan Evans (CA Bar No. 247376)
Center for Biological Diversity
1212 Broadway Street, Suite 800
Oakland, CA 94612
[phone] ext. 318
[e-mail]
Stephanie Parent (OR Bar No. 925908)*
Center for Biological Diversity
P.O. Box 11374
Portland, OR 97211-0374
[phone]
[e-mail]

9
10
11

Attorneys for Plaintiffs
*Admitted pro hac vice
IN THE UNITED STATES DISTRICT COURT

12

FOR THE NORTHERN DISTRICT OF CALIFORNIA

13

OAKLAND DIVISION

14
15
16

CENTER FOR ENVIRONMENTAL
HEALTH, et al.,

17

Plaintiffs,

18

v.

19

21

MICHAEL S. REGAN, in his official
capacity as Administrator of the U.S.
Environmental Protection Agency, et al.,

22

Defendants,

20

23
24

and
CROPLIFE AMERICA,

25
26
27

Intervenor-Defendant.

)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)
)

CASE NO. 4:18-cv-03197-SBA
JOINT UNOPPOSED MOTION TO
EXTEND TIME TO FILE A MOTION FOR
AWARD OF ATTORNEYS’ FEES AND
LITIGATION EXPENSES;
[PROPOSED] ORDER

28

1

1

Pursuant to Federal Rule of Civil Procedure 6(b) and Civil Local Rule 6-3 Plaintiffs

2

(Center for Environmental Health, Center for Biological Diversity, and Californians for Pesticide

3

Reform) and Federal Defendants (Michael S. Regan, Administrator of the U.S. Environmental

4

Protection Agency (“EPA”), the EPA, the U.S. Fish and Wildlife Service (“FWS”), and Debra

5

Haaland, Secretary of the U.S. Department of the Interior) hereby file this joint motion to extend

6

the time for Plaintiffs to file a motion for attorneys’ fees and litigation expenses by an additional

7

sixty (60) days to allow Plaintiffs and Federal Defendants further time to attempt to resolve the

8

matter of attorneys’ fees and costs without Court involvement. The Parties have conferred and

9

Defendant-Intervenor CropLife America does not oppose the relief sought in this joint motion.

10

Under the applicable rules and attorney-fee award provisions of the Endangered Species

11

Act, 16 U.S.C. § 1540(g)(4), Plaintiffs must file a motion for attorneys’ fees and bill of costs

12

within fourteen (14) days of the entry of judgment. Fed. R. Civ. P. 54(d); Civil L.R 54-1(a); Civil

13

L.R. 54-5(a). The Equal Access to Justice Act further provides that “[a] party seeking an award

14

of fees and other expenses shall, within thirty (30) days of final judgment in the action, submit to

15

the court an application for fees and other expenses.” 28 U.S.C. § 2412(d)(1)(B). The Supreme

16

Court has held that the EAJA filing deadline is not jurisdictional. Scarborough v. Principi, 541

17

U.S. 401, 413-14 (2004); see also New Life Evangelistic Ctr., Inc. v. Sebelius, 847 F. Supp. 2d

18

50, 53 (D.D.C. 2012). That time began to run when the Court entered the Parties’ proposed

19

order on the Second Stipulated Partial Settlement Agreement (“Second Settlement”) on April 13,

20

2022. Dkt. 125, ¶ 16.

21

The Parties negotiated a first stipulated partial settlement agreement regarding claims

22

against EPA, Administrator Regan, FWS, and Secretary Haaland, without any admission of the

23

allegations or claims, for the alleged violation of their procedural duties concerning completion

24

of the Final Biological Opinion pursuant to ESA Section 7(a)(2) in Counts 1 and 2 set forth in

25

the complaint. Dkt. 111. The Court entered an order effectuating the first stipulated partial

26

settlement on January 4, 2022, and retained jurisdiction to enforce the terms of the settlement

27

agreement. Dkt. 112.

28

2

1

The Parties negotiated a Second Settlement with regard to the remaining claims against

2

the EPA and Administrator Regan for the alleged failure to comply with their substantive duties

3

under ESA Section 7(a)(2) by taking final agency actions of registering or reregistering certain

4

products containing malathion in paragraph 84 of the complaint as set forth in Count 1; the

5

alleged unlawful withholding and/or unreasonable delay pursuant to Section 706(1) of the

6

Administrative Procedure Act, 5 U.S.C. § 706(1), of completion of their substantive duties under

7

ESA Section 7(a)(2) as set forth in Count 2; and the alleged violations of ESA Section 7(d), 16

8

U.S.C. § 1536(d), as set forth in Count 3. Dkt. 123. The Court entered an order effectuating the

9

Second Settlement on April 13, 2022, and retained jurisdiction to enforce the terms of the

10
11

settlement agreement. Dkt. 125.
On April 13, 2022, the Court also entered an order effectuating Plaintiffs’ and Federal

12

Defendants’ Joint Unopposed Motion to Extend Time to File a Motion for Attorneys’ Fees and

13

Litigation Expenses by ninety (90) days to July 12, 2022. Dkt. 126.

14

The only outstanding issues remaining in this case are related to Plaintiffs’ claim for

15

attorneys’ fees and costs. Plaintiffs and Federal Defendants have been actively involved in

16

settlement discussions and have exchanged settlement proposals.

17

To provide additional time for Plaintiffs and Federal Defendants to resolve the matter of

18

attorneys’ fees and litigation costs absent any further involvement from this Court, Plaintiffs and

19

Federal Defendants respectfully request that the Court extend the time for Plaintiffs to file any

20

such motion for an additional sixty (60) days, through and including September 12, 2022.

21

Providing the Parties additional time to attempt to resolve the issue of attorneys’ fees and costs

22

would reduce or avoid waste of resources to the Parties and the Court that would be incurred by

23

unnecessary motion practice and additional costs, and may allow for more efficient resolution of

24

the remaining issues in the case.

25

By agreeing to this request for additional time, Federal Defendants are not conceding that

26

Plaintiffs are entitled to fees. Federal Defendants reserve all rights and defenses to entitlement

27

and reasonableness of any fee request. As set forth in the attached proposed order, the Parties

28

3

1

request that this Court extend the deadline for Plaintiffs’ motion for attorneys’ fees and litigation

2

costs by sixty (60) days from the current deadline, through and including September 12, 2022.

3
4

Respectfully submitted this 1st day of July, 2022.

5
6
7
8
9
10
11
12
13

/s/ Jonathan Evans
Jonathan Evans
Center for Biological Diversity
1212 Broadway Street, Suite 800
Oakland, CA 94612
Tel: [phone], ext. 318
[e-mail]

TODD KIM
Assistant Attorney General
Environment & Natural Resources Division
S. JAY GOVINDAN, Acting Chief
MEREDITH L. FLAX, Assistant Chief

Stephanie Parent
Center for Biological Diversity
P.O. Box 11374
Portland, OR 97211-0374
Tel: [phone]

/s/ Alison Finnegan
ALISON C. FINNEGAN, Trial Attorney
U.S. Department of Justice
Environment & Natural Resources Division
Wildlife & Marine Resources Section
Ben Franklin Station
P.O. Box 7611
Washington, DC 20044-7611
Tel: [phone] Fax: [phone]

Counsel for Plaintiffs

Counsel for Federal Defendants

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

4

1

ORDER

2

On April 13, 2022, the Court entered an order effectuating the parties’ Second Stipulated

3

Partial Settlement Agreement in the above captioned case resolving the remaining claims in

4

Counts 1, 2, and 3 of the Second Amended Complaint.
Good cause having been shown, it is hereby ORDERED that Plaintiffs’ deadline to file a

5
6

motion for attorneys’ fees and costs and a bill of costs shall be extended by sixty (60) days,

7

through and including September 12, 2022.

8
9

IT IS SO ORDERED.

10
11
12

Dated:

July, 8, 2022

___________________________________
RS
Richard Seeborg for Saundra Brown Armstrong
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1