Church of the Holy Light of the Queen et al v. Mukasey et al

Filing 230

ORDER: Denying Plaintiffs' Request for Attorney Fees 217 . Signed on 11/29/2012 by Judge Owen M. Panner. (dkj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
MEDFORD DIVISION
CHURCH OF THE HOLY LIGHT OF
THE QUEEN, et al.,
No. 1:08-cv-3095-PA
Plaintiffs,
ORDER

v.

ERIC HOLDER, et al.,
Defendants.
PANNER, J.

Plaintiffs seek attorney's fees incurred while defending
this court's judgment on appeal.

Because plaintiffs were not

successful on appeal, I deny their request for fees.
BACKGROUND

After a court trial,

I concluded that the Religious

Freedom Restoration Act (RFRA),

42 U.S.C.

§§

2000bb to 2000bb-

4, forbids the federal government from prohibiting plaintiffs'
ceremonial use of "Daime" tea, which contains DMT, a controlled
substance.
1 - ORDER

Church of the Holy Light of the Queen v. Mukasey,

615 F. Supp. 2d 1210 (D. Or. 2009).
Shortly after issuing the Findings of Facts and
Conclusions of Law, I issued an injunction, based on a
preliminary injunction entered in a similar action then pending
in New Mexico.

See 0 Centro Espirita Beneficiente Uniao do

Vegetal v. Ashcroft, 282 F. Supp. 2d 1236 (D. N.M. 2002),
aff'd, 389 F.3d 973
418

(2006).

(lOth Cir. 2004)

(en bane), aff'd, 546 U.S.

The injunction specified procedures for

plaintiffs' importation, storage, distribution, and drinking of
the Daime tea.
The government filed a notice of appeal.

During the next

several months, plaintiffs' attorneys lobbied for the
government to drop its appeal.

Plaintiffs now seek attorney's

fees for producing a memorandum submitted to government
appellate counsel; for negotiating with attorneys in the
Department of Justice; and for lobbying members of Congress to
persuade the Attorney General that the government's appeal
would be improvident.
The Solicitor General decided to limit the government's
appeal to challenging the scope of this court's injunction.
The government chose not to appeal the Findings of Facts and
Conclusions of Law.
After taking the case under advisement without oral
argument, the Ninth Circuit vacated the injunction as
overbroad.

The court remanded

with instructions for the district court to fashion
2 - ORDER

an injunction limited in scope to its conclusion that
the government failed to show that its interests
justify prohibiting outright the Church's importation
of Daime tea solely for use at Church ceremonies.
In
other words, the injunction should not reach more
conduct than that which the district court held
violated RFRA.
Church of the Holy Light of the Queen v. Holder, 443 F. App'x
302, 303 (9th Cir. 2011)

(per curiam).

On remand, plaintiffs submitted a 17-page proposed order.
Rather than adopting the proposed order, I issued a onesentence injunction:

"Defendants are enjoined from prohibiting

plaintiffs' importation, storage, distribution, and use of
Daime tea for plaintiffs' religious ceremonies."
DISCUSSION

"In any action or proceeding to enforce [RFRA], the court,
in its discretion, may allow the prevailing party

. a

reasonable attorney's fee as part of the costs."

42 U.S.C. §

1988(b).

The government agreed to pay plaintiffs $1,178,000 in

attorney's fees and expenses for work in this court through
August 2009.

In the current motion, plaintiffs seek an

additional $360,480 in fees and expenses for work done on
appeal.
I.

Hours Spent Lobbying
Pla~ntiffs

its appeal.

seek fees for lobbying the government to drop

Because the government did not drop its appeal,

but only limited the scope of the appeal, it is debatable
whether plaintiffs' lobbying efforts can be considered
successful.
3 - ORDER

In any event, I conclude that plaintiffs are not

entitled to fees for lobbying.

The Solicitor General has broad

discretion to determine "whether, and to what extent, appeals
will be taken by the Government to all appellate courts
(including petitions for rehearing en bane and petitions to
such courts for the issuance of extraordinary writs)."
C.F.R. § 0.20(b).

28

Plaintiffs have not presented evidence that

their lobbying was a factor in the government's decision not to
appeal .the Findings of Fact and Conclusions of Law.
II.

Hours Spent on the Appeal

Plaintiffs seek fees for defending this court's injunction
on appeal.

Plaintiffs argue that they were successful because

after remand, this court issued "a very clear injunction
prohibiting the Government from interfering with the
importation, distribution, or drinking of the sacred tea."
Plaintiffs were unsuccessful on the only issue appealed by
the government, whether the injunction was too broad.
Plaintiffs are not entitled to fees for unsuccessfully
defending an issue on appeal.
1450, 1454

(9th Cir. 1993)

See Stewart v. Gates,

987 F.2d

("Plaintiffs [who prevailed at the

district court] are not entitled to fees for work performed in
their unsuccessful defense of the district court award.");
Oviatt v. Pearce, 954 F.2d 1470, 1483 (9th Cir. 1992)

("Because

plaintiff did not prevail on his own cross appeal, he is notentitled to attorney's fees for the time spent in connection
therewith.").
This is not a case in which the party seeking fees was
4 - ORDER

initially unsuccessful on appeal but ultimately prevailed on
the issue.

See Cabrales v. County of Los Angeles, 935 F.2d

1050, 1053 (9th Cir. 1991).

Here, plaintiffs' asserted

satisfaction with the injunction now in place does not convert
their'loss on appeal into a victory.

Nor did plaintiffs

salvage any success on remand, because I did not adopt their
proposed 17-page injunction.

As in Clark v. City of Los

Angeles, 803 F.2d 987, 993 (9th Cir. 1986), although plaintiffs
"were prevailing parties in the case overall, it is clear that
nothing associated with the appeal contributed to any favorable
result achieved by the litigation."

Because plaintiffs seek

fees for their unsuccessful defense of this court's judgment, I
must deny their motion.
CONCLUSION
Plaintiffs' request for attorney's fees

(#217) is denied.

IT IS SO ORDERED.
DATED this

day of November, 2012.

U.S. DISTRICT JUDGE

5 - ORDER