Columbia Riverkeeper v. Bostick et al
Filing
74
OPINION & ORDER: CRK's Motion for Attorney Fees and Litigation Costs 63 is Granted in Part and Denied in Part, and CRK is awarded a total of $89,289.58 in attorney fees and litigation costs. Signed on 5/5/15 by Magistrate Judge Paul Papak. (gm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
COLUMBIA RIVERKEEPER, a non-profit
Washington corporation,
Plaintiff,
v.
U.S. ARMY CORPS OF ENGINEERS, a
United States agency,
Defendant.
Christopher G. Winter
Crag Law Center
917 SW Oak, Suite 417
Portland, Oregon 97205
Miles B. Johnson
Lauren Goldberg
Columbia Riverkeeper
111 Third Street
Hood River, Oregon 97031
Attorneys for plaintiff
Billy J. Williams
Kevin Danielson
United States Attorney's Office
1000 SW Third Avenue, Suite 600
Portland, Oregon
Attorneys for defendant
Page I - OPINION AND ORDER
Case No. 3:13-cv-01494-PK
OPINION AND ORDER
PAP AK, United States Magistrate Judge:
The matter before the Court is plaintiff Columbia Riverkeeper's ("CRK") motion for
attorney fees and litigation costs(# 63). For the reasons set forth below, CRK's motion is granted
in part and denied in part, in that CRK is awarded attorney fees in the reduced amount of
$86,878.04 and litigation costs in the reduced sum of $2,411.54.
BACKGROUND
On August 26, 2013, CRK initiated this lawsuit to compel the production of ninety-one
documents defendant the United States Army Corps of Engineers ("Corps") claimed were
exempt from disclosure under the Freedom of Information Act ("FOIA"). On August 14, 2014,
this Comt pattially granted CRK's motion for summary judgment and ordered the Corps to
produce all but one of the disputed documents. Opinion and Order,# 41. On February 9, 2015,
CRK filed the instant motion pursuant to 5 U.S.C. § 552(a)(4)(E) and Local Rule 54-1,
requesting $120,414.50 in attorney fees and $6,097.04 in litigation costs. Motion for Attorney
Fees and Litigation Costs, # 63, at 2. In its subsequent reply brief, CRK requested an additional
$14,095.50 for preparation of its fee petition, bringing the total requested attorney fees to
$134,510. Reply to Motion for Attorney Fees and Litigation Costs,# 71, at 8.
STANDARD
The prevailing party in an FOIA action must demonstrate that it is both eligible for and
entitled to attorney fees in order to receive such an award. Long v. U.S. Internal Revenue Serv.. ,
932 F.2d 1309, 1313 (9th Cir. 1991) (citation omitted). Once these elements are established, the
prevailing patty "must submit [a] fee bill to the co mt for its scrutiny of [its] reasonableness." Id.
at 1313-14 (citations omitted). In evaluating a reasonable attorney fee, the comt multiplies "the
number of hours the prevailing party reasonably expended on litigation by a reasonable hourly
Page 2 - OPINION AND ORDER
rate.'' Morales v. Citv of San Rafael, 96 F.3d 359, 363 (9th Cir. 1996) (as amended) (discussing
the lodestar method). The lodestar amount is presumptively reasonable but a court may make
adjustments based on a number of factors. See Kerr v. Screen Guild Extras, Inc., 526 F.2d. 67,
70 (9th Cir. 1975), ce1i. denied, 425 U.S. 951 (1976) (outlining twelve factors to be considered
by the comi when adjusting the lodestar amount).
The district court is required to ensure an award' s reasonableness, regardless of whether
the opposing patiy objected to it. Gates v. Deukmeiian, 987 F.2d 1392, 1400-02 (9th Cir. 1992).
The comi also possesses "considerable discretion ... in determining what attorney's fee is
reasonable." Webb v. Ada Cntv., Idaho, 195 F.3d 524, 526-27 (9th Cir. 1999), cert. denied, 537
U.S. 948 (2002). Accordingly, "the reasonable fee, as calculated by the district court, may fall
shott of the actual fee that the ... lawyer charges." Corder v. Gates, 947 F.2d 374, 378 n.3 (9th
Cir. 1991) (citation and internal quotations omitted).
DISCUSSION
It is undisputed that CRK is both eligible for and entitled to an awai·d of attorney fees due
to the fact that it substantially prevailed on its FOIA claims. 5 U.S.C. § 552(a)(4)(E); Response
to Motion for Attorney Fees and Litigation Costs, # 70, at 2. Thus, the sole issue before the Court
is whether the rates and number of hours requested by CRK are reasonable.
I. Reasonableness of the Requested Hourly Rates
CRK seeks the following hourly rates for work performed by attorney Christopher G.
Winter, who passed the bar in 1998: $395 for his 2013 work, $405 for his 2014 work, and $415
for his 2015 work. Motion for Attorney Fees and Litigation Costs, # 63, at 7. For attorney Miles
B. Johnson, who passed the bar in 2012, CRK requests the following hourly rates: $200 for his
2013 work and $220 for his 2014-15 work. Id. at 9.
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In determining a reasonable hourly rate, the district court looks to "the rate prevailing in
the community for similar work performed by attorneys of comparable skill, experience, and
reputation." Chalmers v. City of L.A., 796 F.2d 1205, 1210-11 (9th Cir. 1986). "The general rule
is that the relevant community for purposes of the prevailing rate is the forum in which the
district court sits." Prison Legal News v. Umatilla Cnty., 2013 WL 2156471, *5 (D. Or. May 16,
2013) (citations omitted). "This District considers the most recent Oregon State Bar Economic
Survey ('OSB Survey') as its 'initial benchmark' in determining whether hourly billing rates are
reasonable." Id. at *4 (citations omitted). "If the rate requested exceeds the average rate reported
in the OSB Survey, the burden is on the prevailing party to justify that higher rate." Id.
Initially, both CRK attorneys compare their requested rates to those in the Portland legal
community and the Corps does not dispute the use of this benchmark. Furthermore, Winter's
office is located in Portland. Thus, although Johnson's office is located in Hood River, Oregon,
the Court uses Portland as the relevant community for determining the prevailing market rate.
A. Rates for Attorney Winter
The hourly rates requested by CRK for Winter are higher than average for an attorney
with a commensurate level of experience. 1 CRK justifies Winter's increased hourly rate by
pointing to his expertise in environmental law. Declaration of Christopher G. Winter,# 65, if 23.
The Corps does not dispute Winter's specialized knowledge of environmental law but
rather argues that those skills were unnecessary to successfully litigate this FOIA case, such that
Winter should only be awarded the median rate for an attorney with his level of experience.
Response to Motion for Attorney Fees and Litigation Costs, # 70, at 6. Specifically, the C01ps
1
According to the most recent OSB Survey, the average rate for a Po1tland attorney with 16-20
years of experience is $256 per hour. 2012 OSB Survey, at 30. The average rate for an attorney
specializing in environmental law is $332 per hour. Id. at 32.
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asserts that a limited discussion of the National Environmental Policy Act ("NEPA") - i.e. two
paragraphs in the Co1ps' motion for summary judgment and three paragraphs in CRK's crossmotion for summary judgment - is evidence that this lawsuit did not require environmental
expertise. Id. The Co1ps argument, however, fails to acknowledge that NEPA is discussed
throughout both paities' briefings. See, e.g., Motion for Summary Judgment,# 27, at 6, 10-13;
Cross Motion for Summary Judgment and Response,# 32, at 17-37. Further, CRK explained that
Winter's special knowledge of environmental law, and NEPA in paiticular, was necessary to
justify why the documents at issue did not fall under the various privileges asserted by the Corps.
Motion for Attorney Fees and Litigation Costs, #63, at 6.
The Comt finds that Winter's specialized knowledge of environmental law contributed to
the results achieved by CRK in this FOIA action. As such, Winter is entitled to an increased
hourly rate. Indeed, adjusted for inflation,2 the rates requested by Winter fall below the 75th
percentile in most instances and are reasonable for an environmental attorney of his caliber.
Declaration of Christopher G. Winter, #65,
'\I'll 5-17; Declaration of David H. Becker, # 68, '\[ 26;
2012 OSB Survey, at 32. Accordingly, Winter is awarded his requested hourly rates.
B. Rates for Attorney Johnson
Johnson .also requests rates that are higher than average for an attorney with his
experience. 3 As with Winter, CRK justifies these increased rates by pointing to Johnson's
expertise in environmental law. Declaration of Miles B. Johnson,# 64, '\[ 19. However, Johnson
had only been practicing as an attorney for seven months when he began working on this case.
2
All adjustments for inflation were. made using the Bureau of Labor Statistics CPI Inflation
Calculator, available at http://www.bls.gov/data/inflation calculator.htm.
3
The average rate for a Portland attorney with 0-3 years of experience is $182 per hour. 2012
OSB Survey, at 29.
Page 5 - OPINION AND ORDER
See Declaration of Miles B. Johnson, Exhibit A,# 64-1. Despite CRK's attestations to Johnson's
competency, the Court finds his requested rates - which exceed the 75th percentile in most
instances - unreasonable based on his status as a new attorney and, as discussed in greater detail
below, the fact that Winter appeared to be lead counsel in this litigation. Declaration of David H.
Becker, # 68,
~
27; 2012 OSB Survey, at 29. The Court also notes that Johnson is being
compensated using Portland as the relevant legal community, despite working in Hood River
where the average hourly rate is lower. 2012 OSB Survey, at 29. For these reasons, the Court
finds the average hourly rate from the 2012 OSB Survey, adjusted for inflation, to be reasonable.
Johnson is therefore awarded $188.49 per hour for work performed in 2013, $191.55 per hour for
work performed in 2014, and $189.92 per hour for work performed in 2015.
II. Reasonableness of Hours Requested
CRK seeks compensation for a total of 525.9 hours of work. Specifically, CRK requests
payment for the following time spent by Johnson: 352.4 hours pursuing the FOIA claims and
64. 7 hours pursuing the fee petition. For work performed by Winter, CRK seeks compensation
for 97.8 hours pursuing the FOIA claims and 11 hours pursuing the fee petition.
A. Hours Requested for FOIA Claims
CRK seeks compensation for a total of 450.2 hours of work during the FOIA litigation,
including 95.1 hours for opposing the Corps' motion for protective order. While the district court
has a great deal of discretion when determining the reasonableness of the hours requested by the
prevailing party, it must give "some indication as to how it anived at the amount of compensable
hours for which fees were rewarded." Deukmejian, 987 F.2d at 1398 (citations omitted). The
court may exclude excessive or redundant hours that could not reasonably be billed to a private
client. Gonzalez v. City of Maywood, 729 F.3d 1196, 1203 (9th Cir. 2013) (citation omitted).
Page 6 - OPINION AND ORDER
Further, the court is permitted to make across-the-board or percentage cuts to the requested hours
so long as it provides a reasonable explanation for doing so. Ferland v. Comad Credit Corp., 244
F.3d 1145, 1150 (9th Cir. 2001).
In support of the reasonableness of its requested hours, CRK notes the intensive
document review process that was required in this case. Motion for Attorney Fees and Litigation
Costs, # 63, at 10. CRK also maintains that its attorneys exercised sound billing judgment by
excluding hours for duplicative, clerical, and other non-compensable tasks (totaling 15.1 hours)
and work performed by other attorneys who were briefly associated with the case (totaling 16.5
hours). Id. at 11.
The Corps challenges the number of hours requested by CRK as excessive and requests
the Court reduce the hours in a similar fashion to Audubon Soc. of Portland v. U.S. Natural Res.
Conservation Serv., 2012 WL 4829189 (D. Or. Oct. 8, 2012). Response to Motion for Attorney
Fees and Litigation Costs, # 70, at 7-9. Further, the Corps asserts CRK is not entitled to
compensation for time spent on unsuccessfully opposing its motion for protective order. Id. at 911.
"Where a lawsuit consists of related claims, a plaintiff who has won substantial relief
should not have his attorney's fee reduced simply because the district court did not adopt each
contention raised." Hensley v. Eckerhart, 461 U.S. 424, 440 (1983). On the other hand, "[w]here
the plaintiff has failed to prevail on a claim that is distinct in all respects from his successful
claims, the hours spent on the unsuccessful claim should be excluded." Id. The test for whether a
claim is related "is whether relief sought on the unsuccessful claim is intended to remedy a
course of conduct entirely distinct and separate from the course of conduct that gave rise to the
Page 7 - OPINION AND ORDER
injury on which the relief granted is premised." Schwarz v. Sec'y of Health & Human Servs., 73
F.3d 895, 903 (9th Cir. 1995) (citations and internal quotations omitted).
The Comt finds that the Corp's motion for protective order, and, by extension, CRK's
opposition brief, was unrelated to the FOIA claims CRK was ultimately successful on. The issue
in relation to the protective order was whether a document, which had been inadve1tently
produced by the Corps in response to CRK's FOIA request, was attorney work product. See
generally Memorandum in Support of Motion for a Protective Order, # 15; Response in
Opposition to Motion for Protective Order,# 19. Thus, the course of conduct that gave rise to the
motion for protective order - i.e. the Corps' inadvertent disclosure - was entirely distinct and
separate from the conduct that gave rise to CRK's FOIA claims - i.e. the deliberate withholding
of documents. See Sorenson v. Mink, 239 F.3d 1140, 1147 (9th Cir. 2001) ("[h]ours expended
on unrelated, unsuccessful claims should not be included in an award of fees"). CRK's
opposition of the Corps' protective motion also did nothing to contribute to the success of its
FOIA claims. See Cabrales v. Cnty. of L.A., 935 F.2d 1050, 1052 (9th Cir. 1991) ("even if a
specific claim fails, the time spent on that claim may be compensable, in full or in patt, if it
contributes to the success of other claims"). Further, the Corps prevailed on its motion for
protective order; awarding CRK fees associated with its unsuccessful opposition of that motion
would turn "the presumption that attorney fees should be awarded to a party who was granted a
protective order ... on its head." Response to Motion for Attorney Fees and Litigation Costs, #
70, at 10; see generally Bark v. Northrop, 300 F.R.D. 486 (2014) (awarding attorney fees to the
defendant and defendant-intervenor in an environmental lawsuit after granting their motion for
protection). Accordingly, the hours spent opposing the motion for protective order, which were
Page 8 - OPINION AND ORDER
accrued in 2014, will not be included in CRK's award. The requested hours are reduced by the
following amounts: Johnson - 73.2; Winter - 21.9 hours.
After reviewing the billing records, the Court finds the remaining number of hours
expended by Winter to be largely reasonable given the nature of the case and the excellent results
achieved. Nevertheless, on a number of occasions Winter billed more time than Johnson for a
joint phone call between the two. 4 As such, the Court reduces Winter's requested time for 2013
by 1.3 hours, representing the difference between the time billed by Winter and the time billed
by Johnson for the same calls.
Finally, the Court finds Johnson's hours to be excessive. The following are examples of
Johnson's requested hours conesponding to particular documents filed in this case: Complaint(#
1) - 27.8 hours; Cross Motion for Summary Judgment (# 32) - 106.6 hours; Reply to
Defendant's Response to Cross Motion for Summary Judgment(# 40) -41.4 hours; Response in
Opposition to Motion to Stay (# 47) - 28.l hours. The manifold hours spent by Johnson are
likely a symptom of his self-education as a relatively new attorney and are umeasonable,
especially because Johnson was assisted by Winter throughout the case and Winter likewise
expended a significant number of hours preparing the aforementioned documents. The Court
exercises its discretion to apply a ten percent cut to Johnson's requested FOIA hours (excluding
those already deducted in relation to the protective order), resulting in the following reductions:
2013 - 5.9 hours; 2014-22.1 hours.
4
The below dates are instances in which Winter billed more time than Johnson for the same
phone call: 10/26/2013 - Winter billed 0.4 hours while Johnson billed 0.2 hours; 1/31/2014 Winter billed 0.3 hours while Johnson billed 0.1 hours; on 2/3/2014 - Winter billed 0.6 hours
while Johnson billed 0.4 hours; 5/7/2014 - Winter billed 0.3 hours while Johnson billed 0.1
hours; 5/27/2014- Winter billed 0.3 hours while Johnson billed 0.1hours;10/17/2014- Winter
billed 0.3 hours while Johnson billed 0.1 hours. Declaration of Miles B. Johnson, Exhibit A, #
64-1; Declaration of Christopher G. Winter, Exhibit A, # 65-1.
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B. Hours for Fee Litigation
CRK also seeks compensation for a total of 75. 7 hours generated in conjunction with its
motion for attorney fees and litigation costs. A plaintiff that substantially prevails in an FOIA
action may recover fees for time reasonably spent preparing its fee petition, or "fees-on-fees."
Or. Natural Desett Ass'n v. Gutierrez, 442 F.Supp.2d 1096, 1102 (D. Or. 2006), affd in part,
rev'd in part sub nom., 572 F.3d 610 (9th Cir. 2009).
After a review of the billing entries related to fees-on-fees, the Court finds the 11 hours
requested by Winter to be reasonable. However, the 64.7 hours requested for work done by
Johnson is excessive. The Coutt acknowledges that it takes time to prepare a motion for attorney
fees; however, the instant motion and declarations in support were standard attorney fee request
documents. See generally Motion for Attorney Fees and Litigation Costs, # 63. Futther, CRK's
reply brief, while more nuanced, contains no novel arguments or substantial legal analysis. See
generally Reply to Motion for Attorney Fees and Litigation Costs, # 71. Recognizing that
Johnson drafted the majority of these documents, the Court finds it reasonable to award him
double the amount of Winter's reasonable hours. Accordingly, Johnson is awarded 22 hours for
the 2015 work he performed preparing CRK's fee petition.
In sum, after taking the above-listed deductions, the Coutt awards CRK $86,878.04 in
attorney fees. 5 In arriving at this sum, the Court considered the pertinent factors outlined in
Kerr and finds that no further adjustments are necessary.
5
Johnson's total = $52,187.04 (2013 - $189.49 per hour x 52.7 hours = $9,986.12; 2014 $191.55 per hour x 198.5 hours= $38,022.68; 2015 - $189.92 per hour x 22 hours= $4,178.24).
Winter's total = $34,691 (2013 - $395 per hour x 8.2 hours= $3,239; 2014 - $405 per hour x
66.9 hours= $27,094.50; 2015 - $415 per hour x 10.5 hours= $4,357.50).
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III. Litigation Costs
CRK requests a total of $6,097.04 in litigation costs, which are comprised of a $400
filing fee, $131.54 in mailing and travel costs, and $5,565.50 in witness fees arising out of three
expert attorney declarations. Motion for Attorney Fees and Litigation Costs, # 63, at 11.
A district court is permitted to award reasonable litigation costs to a substantially
prevailing plaintiff in an FOIA action. 5 U.S.C. 552(a)(4)(E)(i). Expenses for expert attorney
declarations are among the types of litigation costs that may be awarded. Or. Natural Res.
Council Fund v. Goodman, 2008 WL 4000442, *7 (D. Or. Aug. 25, 2008).
The Corps does not contest the filing fee or mail and travel costs but does object to any
award for expe1i witness fees. Response to Motion for Attorney Fees and Litigation Costs, # 70,
at 11. Fees for expert attorney declarations may be denied if they are incurred performing
duplicative work. See Audubon, 2012 WL 4829189 at *2 (declining to award fees for an expeti's
declaration because it was largely duplicative of other information before the court). Here, all
three expert attorneys declarations attest to the reasonableness of CRK's requested fees. See
Declaration ofR. Scott Jerger,# 66; Declaration of Peter M. Lacy,# 67; Declaration of David H.
Becker,# 68. Of the three declarations, David Becker's was the most detailed and well-reasoned.
As such, Becker's expe1i declaration provided the Court with some guidance during its review of
the materials submitted in this case. The declarations of Peter Lacy and Scott Jerger were largely
duplicative of Becker's declaration and provided little additional useful information. Lacy's and
Jerger's declarations were also duplicative of Winter's and Johnson's declarations. Accordingly,
the fees requested for Lacy's and Jerger's declarations are denied. Therefore, CRK is awarded a
total of $2,411.54 in litigation costs ($1,880 in expenses related to Becker's declaration, $400 in
filing fees, and $131.54 in mailing and travel costs).
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CONCLUSION
CRK's Motion for Attorney Fees and Litigation Costs(# 63) is GRANTED, in pmt, and
DENIED, in pmt, and CRK is awarded a total of$89,289.58 in attorney fees and litigation costs.
IT IS SO ORDERD.
Dated this 5th of May, 2015.
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