Ohio Valley Environmental Coalition et al v. Bluestone Coal Corporation

Filing 122

MEMORANDUM OPINION AND ORDER granting plaintiffs' 116 MOTION for an Award of Attorneys' Fees, Expert Witness Fees, and Expenses. The court finds that plaintiffs are entitled to a total fee and cost award of $165,274.03, payable by defendant in the manner set forth in the 115 Consent Decree. Signed by Senior Judge David A. Faber on 9/29/2021. (cc: counsel of record) (arb)

Case 1:19-cv-00576 Document 122 Filed 09/29/21 Page 1 of 17 PageID #: 1856

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
AT BLUEFIELD
WEST VIRGINIA HIGHLANDS
CONSERVANCY, APPALACHIAN
VOICES, and THE SIERRA CLUB
Plaintiffs,
v.

CIVIL ACTION NO. 1:19-00576

BLUESTONE COAL CORPORATION,
Defendant.
MEMORANDUM OPINION AND ORDER
Pending before the court is plaintiffs’ Motion for an Award
of Attorneys’ Fees, Expert Witness Fees, and Expenses (ECF No.
116.)

For the reasons that follow, the motion is GRANTED,

although the court will award less than the total requested.
I.

Background
On February 17, 2021, the court entered a consent decree in

this case.

The consent decree, however, expressly left

unresolved plaintiffs’ claim for fees and costs under 33 U.S.C.
§ 1365(d) and 30 U.S.C. § 1270(d).
On February 24, 2021, plaintiffs filed this motion, seeking
$163,254.25 in attorney’s fees, $19,044.94 in expert witness
fees, and $5,013.75 in costs, for a total of $187,312.94. 1
The conclusion to plaintiffs’ memorandum in support of their
motion requests a total of $182,299.19. (ECF No. 117.) That
1

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Defendant opposes the motion.

Defendant concedes that

plaintiffs are prevailing parties entitled to fees and costs in
the court’s discretion, and defendant does not contest the
hourly rates that plaintiffs have put forth for the lodestar
calculation.

Also, defendant does not appear to contest the

$5,013.75 in costs that plaintiffs claim.
Instead, defendant focuses its opposition on the fees
plaintiffs incurred for their expert witnesses and on the
attorney’s fees associated with those experts.

Defendant

objects to the full amount of these figures, totaling $29,181.65
by defendant’s calculation, and asks the court to reduce
accordingly any fee award that it finds appropriate to grant.
Defendant argues that the experts (and, by extension, the
associated legal work) was unnecessary to this rather
straightforward set of facts, and that, moreover, the expected
testimony was erroneous and irrelevant.
Plaintiffs respond by pointing out that when the case
settled, trial was imminent and the expected testimony of the
experts, while disputed by defendants, was undoubtedly relevant
to the issues for trial.

Plaintiffs suggest that the expert

total appears to omit erroneously plaintiffs’ claimed costs.
Both the motion and the memorandum list costs totaling
$5,013.75. Thus, despite the apparent error in plaintiffs’
total, defendant received fair notice that plaintiffs are
seeking these costs.
2

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testimony was also presumably admissible because defendant had
not filed a pretrial motion to exclude or limit it.

Moreover,

say plaintiffs, a fee motion is not the proper context for
disputing the merits of a case, which is what defendant attempts
to do when it criticizes the substance of plaintiffs’ experts’
reports.
II.

Legal Standard
Our legal system operates under the default rule that each

side bears its own litigation fees and costs.

Perdue v. Kenny

A. ex rel. Winn, 559 U.S. 542, 550 (2010).

Congress “departs”

from this default rule “from time to time.”

Ohio River Valley

Env’t Coal., Inc. v. Green Valley Coal Co., 511 F.3d 407, 413
(4th Cir. 2007).

Two examples of such a departure are in Clean

Water Act (“CWA”) and Surface Mining Control and Reclamation Act
(“SMCRA”) cases.

See 33 U.S.C. § 1365(d) (CWA); 30 U.S.C.

§ 1270(d) (SMCRA).
The CWA provides, “The court, in issuing any final order in
any action brought pursuant to this section, may award costs of
litigation (including reasonable attorney and expert witness
fees) to any prevailing or substantially prevailing party,
whenever the court determines such award is appropriate.”
U.S.C. § 1365(d).

33

In like manner, the SMRCA provides, “The

court, in issuing any final order in any action brought pursuant
to subsection (a) of this section, may award costs of litigation
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(including attorney and expert witness fees) to any party,
whenever the court determines such award is appropriate.”

30

U.S.C. § 1270(d).
District courts are expected to use their discretion in
resolving motions for fees and costs.
1071, 1078-79 (4th Cir. 1986).
their nature than legal.

Daly v. Hill, 790 F.2d

Such motions are more factual in

See id.

But district courts in this

circuit are also expected to follow “a three-step process.”
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013).

Those three

steps are (1) apply the dozen factors set forth in Johnson v.
Georgia Highway Express Inc., 488 F.2d 714, 717–19 (5th Cir.
1974) in determining the “lodestar” figure; (2) subtract for
unsuccessful claims (unless they are related to successful
ones); and (3) determine what percentage of the remaining amount
should be awarded by reference to the prevailing party’s degree
of success.

Id. (citations omitted).

The lodestar figure is the product of the reasonable number
of attorney hours to litigate the case and the reasonable rate
for those hours.

Id. 2

As for the Johnson factors, they are

If more than one attorney litigated the case for the prevailing
party, the reasonable rate obviously may vary depending on the
expertise of the attorney billing each portion of the total
hours. See Lusk v. Virginia Panel Corp., 96 F. Supp. 3d 573,
582 (W.D. Va. 2015) (finding $300 per hour reasonable for
partners and $150 per hour reasonable for an associate).
2

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(1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill
required to properly perform the legal services
rendered; (4) the attorney’s opportunity costs in
pressing the instant litigation; (5) the customary fee
for like work; (6) the attorney’s expectations at the
outset of the litigation; (7) the time limitations
imposed by the client or circumstances; (8) the amount
in controversy and the results obtained; (9) the
experience, reputation and ability of the attorney;
(10) the undesirability of the case within the legal
community in which the suit arose; (11) the nature and
length of the professional relationship between
attorney and client; and (12) attorneys’ fees awards
in similar cases.
Grissom v. The Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008). 3
“Reasonableness is the touchstone of any award of
attorneys’ fees and expenses.”

E.I. DuPont de Nemours & Co. v.

Kolon Indus., No. 3:09CV058, 2013 WL 458532, at *2 (E.D. Va.
Feb. 6, 2013).

“When properly calculated, the lodestar figure

represents a presumptively reasonable fee.”

Project Vote/Voting

for Am., Inc. v. Long, 887 F. Supp. 2d 704, 709 (E.D. Va. 2012);
see also City of Burlington v. Dague, 505 U.S. 557, 562 (1992);
McAfee v. Boczar, 738 F.3d 81, 88-89 (4th Cir. 2013) (“The

The Supreme Court has contrasted the Johnson factors and the
lodestar method, endorsing the latter as the better of the two.
See Perdue, 559 U.S. at 551. While recognizing the potential
overlap between the two methods and stating that the same
factors should not be considered twice, the Fourth Circuit Court
of Appeals has not abandoned the Johnson factors. See McAfee,
738 F.3d at 88-90; E. Associated Coal Corp. v. Director, 724
F.3d 561, 570 n.5 (4th Cir. 2013) (“[C]onsideration of [the
Johnson] factors likewise is subject to the Supreme Court’s
admonition regarding double-counting.”).
3

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Supreme Court has indulged a ‘strong presumption’ that the
lodestar number represents a reasonable attorney’s fee.”).
“The party requesting a fee bears the burden of
establishing entitlement to an award and documenting the
appropriate hours expended and hourly rates.”
F. Supp. 2d at 709.

Project Vote, 887

Among the appropriate evidence to show what

rates are reasonable is “evidence of fees [the attorney]
received in the past.”

See Westmoreland Coal Co. v. Cox, 602

F.3d 276, 290 (4th Cir. 2010).
III. Discussion
a.

Lodestar Calculation

Plaintiffs have proposed lodestar inputs for their three
attorneys as follows:
James Hecker:

167.25 hours at $475 per hour, for a total

of $79,443.75;
Derek Teaney:

136.1 hours at $355 per hour, for a total of

$48,315.50; and
Michael Becher:

114.5 hours at $310 per hour, for a total

of $35,495.
Defendant has not contested the reasonableness of the hourly
rates, but defendant does contest the total hours.
Specifically, defendant asks the court to exclude all hours
related to the plaintiffs’ experts, whom defendant says did not
advance plaintiffs’ case.

Relatedly, defendant directly
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challenges plaintiffs’ claim for expert fees, saying they should
be disallowed in their entirety.

Evaluating the lodestar inputs

that plaintiffs propose against the Johnson factors, the court
determines that the inputs that plaintiffs have proposed are
largely correct.
1. Time and Labor Expended (Reasonable Hours) 4
Because the lodestar is ultimately the product of
reasonable hours at reasonable rates, this factor calls for
considering what time and labor were reasonably expended.
Plaintiffs’ three attorneys state that they each worked over 100
hours on this case, for a combined total of approximately 418
hours.

Defendant does not contend that plaintiffs’ counsel

generally worked too many hours but does contend that the 24.95
hours spent on expert issues were unnecessary.
As an initial matter, the court finds that the non-expert
hours of 392.9 are a reasonable lodestar input, with one small
exception. 5

The court makes this finding in light of the hours’

Because this section implicates the reasonableness of the
expert witness fees claimed, the court will address plaintiffs’
claim for those fees in this section.
4

The small exception is for Mr. Teaney’s entry of 0.5 hours for
securing lodging for the trial team and witnesses. (See ECF No.
116-2, at 20.) Having had the opportunity to observe Mr.
Teaney’s briefing and oral argument, the court has no qualms
with his proposed hourly rate for legal work. However, because
it is appropriate to reduce the rate for an attorney’s
performance of administrative work, the court will reduce the
rate for this entry by half, for a total reduction of $88.75.
5

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facial reasonableness, when considering the extent of the
litigation, and given the lack of specific criticism from
defendant as to the non-expert hours claimed.

Moreover, the

entries on the timesheets appear reasonable.
That leaves 24.95 remaining hours (those spent on expert
issues) and the resolution of defendant’s contention that these
hours were unreasonable.
attorney’s fees.

Those hours translate to $10,136.75 in

And the expert fees themselves amount to

$19,044.94.

The grand total at issue in this objection is

$29,181.69.

Defendant says the expected expert testimony in

this case was irrelevant, unhelpful, and not logically related
to the case.

Defendant’s position is that the experts did not

help establish liability but were merely engaged “to attempt to
maximize potential civil penalties.”
Plaintiffs engaged two experts:

(ECF No. 118, at 2.).

Schneiter.

Jonathan Schefftz and Wane

Schneiter, an engineer, was expected to testify that

defendant should have (and should still) use SeHawk bioreactor
units to remedy the selenium discharge problem.

Defendant

criticizes this expected testimony as plainly wrong and as the
product of too narrow an analysis.

Shefftz, an economist, was

expected to testify regarding appropriate civil penalties.

See Conservation L. Found., Inc. v. Roland Teiner Co., 832 F.
Supp. 2d 102, 106 (D. Mass. 2011) (cutting rate in half for
administrative work).
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Defendant says that Shefftz’s conclusion—that at least $3.3
million in penalties would be appropriate—erroneously assumes
the propriety of installing the SeHawk bioreactor units.
Defendant further states:
In other words, both Mr. Schneiter and Mr. Schefftz
limited their opinions to just one of several possible
methods available to BCC to correct the selenium
problem. Yet BCC never intended to use SeHawk
bioreactors, and did not even seriously consider using
them, because the SeHawk units were prohibitively
expensive.
(Id. at 3 (footnote omitted).)
Plaintiffs reply that although the court’s award of summary
judgment on liability limited the scope of the issues for trial
to those related to appropriate remedies, engaging these experts
was integral to preparing for a trial on those issues.

They say

they needed Schneiter to help the court understand the technical
issues involved in achieving compliance, and they needed
Schefftz to help the court understands the economics informing
the penalties analysis.

And such experts are routinely

presented in these cases, say plaintiffs.
Further, plaintiffs deem unsubstantiated and unavailing
defendant’s claim that the proposed technology was costprohibitive.

They say cost does not excuse non-compliance, and

it would be defendant’s burden to come forward with a less
expensive means of achieving compliance.

9

Moreover, plaintiffs

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contend, a post-settlement fee application is not the proper
context in which to raise disputed issues of fact.
The court will allow the disputed attorney’s fees and
expert fees at a twenty percent reduction.

A federal court may

decline to award fees for an expert who proves unhelpful.

Am.

Canoe Ass’n, Inc. v. City of Louisa, 683 F. Supp. 2d 480, 499
(E.D. Ky. 2010).

From the court’s vantage point, retaining

these experts appears to have been reasonable, and it appears
that the testimony would have been helpful.

By settling prior

to trial, defendant gained the benefit of limiting its exposure
related to these experts’ fees.

And plaintiffs are correct that

defendant’s argument pushes the boundaries of permissibility by
touching upon factual issues that were settled. 6

A party cannot

settle and then dodge a fee application by predicting a
favorable outcome, had the case proceeded to trial.
On the other hand, because the settlement obviated the need
for a trial, the court never received an opportunity to evaluate
just how helpful the experts would be, and thus, how reasonable
their fees are.

Defendant has made a focused argument and has

See E. Associated Coal Corp. v. Director, 724 F.3d 561, 577
(4th Cir. 2013) (noting that fee petitions “should not result
‘in a second major litigation’”) (quoting Hensley v. Eckerhart,
461 U.S. 424, 437); see also E.E.O.C. v. Propak Logistics, Inc.,
746 F.3d 145, 157 (4th Cir. 2014) (Wilkinson, J., concurring)
(criticizing a party for “rehash[ing]” merits arguments in the
context of a fee petition).
6

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plausibly called into question the reasonableness of the expert
fees and related attorney’s fees.

Though limited, there is

enough merit in this argument to warrant a modest reduction in
the lodestar.
Accordingly, the court will reduce the ultimate lodestar to
reflect a 20 percent across-the-board reduction in expert fees
and related attorney’s fees, which amounts to a reduction of
$5,836.34 ($2,027.35 for attorney’s fees and $3,808.99 for
expert fees).
2. Novelty and Difficulty of Issues
This case did not appear to be extraordinarily complex, as
environmental cases go.

But plaintiffs’ attorneys faced skilled

counsel who put forth a formidable defense, and there were some
thorny issues to address.

This factor calls for no adjustment,

as the case on the whole appears to have been of average
difficulty.
3. Skill Required to Perform the Legal Services Properly
This case involved a specialized area of the law for which
plaintiffs’ counsel were well-prepared by experience in other
cases.

To litigate the case effectively, counsel presumably

drew upon their skills both in environmental law matters and in
federal practice more generally.

Because the court finds that

the rates and hours set forth by plaintiffs accurately reflect

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the skill needed to take on this case and reach a favorable
outcome, this factor calls for no adjustment.
4. Attorneys’ Opportunity Costs
There is no indication that this case had more than an
average effect on plaintiffs’ attorneys’ ability to take on
other work.

Thus, this factor calls for no adjustment.

5. Customary Fee for Like Work
The declarations of plaintiffs’ counsel establish that
their fees are commensurate with other fees awarded in
litigation of this variety.

The same or similar rates have been

approved for plaintiffs’ counsel in similar cases.

Thus, this

factor calls for no adjustment.
6. Attorneys’ Expectations at Outset
There is no indication that this case proved to be any more
or any less difficult than plaintiffs’ counsel expected it to
be.

Thus, this factor calls for no adjustment.
7. Client or Case-specific Time Limitations
The schedule in this case was impacted by the COVID-19

epidemic.

Otherwise, the time limitations were typical.

this factor calls for no adjustment.

12

Thus,

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8. Amount in Controversy versus Result Obtained
This factor is subsumed within step three, below, of the
analysis required in this circuit, so the court will refrain
from considering it here as well. 7
9. Attorneys’ Experience, Reputation, and Ability
Plaintiffs’ attorneys have impressive credentials and
appear to be well regarded.
experience among them.

There is also a wealth of

The court finds that these

considerations are fully reflected in the hourly rates that
plaintiffs’ counsel have proposed.

Thus, this factor calls for

no adjustment.
10. Undesirability of Case within Legal Community
While some members of the legal community may not be
interested in representing plaintiffs in this case, that is
probably more a result of the nature of their practices.

The

case could also be perceived as an affront to an industry that
has been important to West Virginia’s economy historically.
Beyond this, however, this is little indication that the case
was particularly undesirable among members of the legal
community as a whole.

Thus, this factor calls for no

adjustment.

7

See footnote 3, supra.
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11. Nature and Length of Attorney-client Relationship
Plaintiffs’ attorneys appear to have longstanding
relationships with their organizational clients and appear
committed to similar goals in the area of environmental law.
The court does not find it appropriate to adjust upward or
downward based on this factor in this case.

Thus, this factor

calls for no adjustment.
12. Attorney’s Fees Awards in Similar Cases
As discussed in factor five, the attorney declarations here
establish that the fees requested are commensurate with similar
awards in similar cases.

Thus, this factor calls for no

adjustment.
b.

Lodestar Figure

In light of the foregoing analysis, the arguments in the
briefs, and the declarations of plaintiffs’ counsel, the court
determines that the total lodestar figure is $161,138.15.

To

arrive at this figure, the court took the original proposed
lodestar of $163,254.25 and subtracted $2,027.35, representing a
20% reduction for plaintiffs’ legal work associated with their
experts and $88.75, as a result of applying a lower rate for a
half hour of attorney work spent on an administrative task.
c.

Adjustment for Unsuccessful Claims

“After a lodestar figure is calculated, the Court must
determine whether the fee award should be reduced to reflect the
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time counsel spent on unsuccessful claims that are unrelated to
the successful claims.”

Crump v. U.S. Dep’t of Navy, 245 F.

Supp. 3d 692, 716 (E.D. Va. 2017) (emphasis in original).

The

court granted summary judgment to plaintiffs on the issue of
liability both on their CWA and SMCRA claims.

(ECF No. 73.)

Thus, there are no unsuccessful claims for which to adjust the
lodestar.
d.

Adjustment for Degree of Success

The final step is as follows:

“Once the court has

subtracted the fees incurred for unsuccessful, unrelated claims,
it then awards some percentage of the remaining amount,
depending on the degree of success enjoyed by the plaintiff.”
Grissom v. The Mills Corp., 549 F.3d 313, 321 (4th Cir. 2008).
This step is somewhat in tension with the presumption that the
lodestar is reasonable.

Perdue, 559 U.S. at 553-54 (suggesting

that departures from lodestar should be rare).

Accordingly,

this step does not involve simply reducing a requested award by
reference to the amount sought versus the amount obtained.
Instead, the question is whether the plaintiffs’ “level of
success . . . makes the hours reasonably expended a satisfactory
basis for making a fee award.”

See McAfee, 738 F.3d at 92

(emphasis added).
Here, there is a satisfactory basis for a significant fee
award, but not quite for the full amount of the lodestar.
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Plaintiffs achieved significant injunctive relief and monetary
payments by virtue of the negotiated consent decree.

As to the

monetary payments, these were $30,000 to the United States and
$270,000 to an environmental mitigation project.

The court

approved the consent decree and offers no criticism thereof.
The court notes, however, that the combined monetary relief is
significantly less than what plaintiffs’ expert was expected to
testify the appropriate penalty would be.

There is enough of a

discrepancy there such that the court should temper the lodestar
slightly.

Accordingly, the court finds that a ten percent

downward adjustment to the lodestar is appropriate.
Thus, the total adjusted attorney’s fee award amount is
$145,024.33.
e.

Expert Fees

As discussed above, the expert fees will be allowed at a
20% reduction.

The total amount sought is $19,044.94.

Thus,

the total adjusted expert witness fee award amount is
$15,235.95.
f.

Costs

The costs requested, totaling $5,013.75, appear reasonable.
Defendant has not contested them.

Accordingly, the court will

award costs in the amount of $5,013.75.

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IV.

Conclusion
For the reasons expressed above, plaintiffs’ motion (ECF

No. 116) is GRANTED.

The court finds that plaintiffs are

entitled to a total fee and cost award of $165,274.03, payable
by defendant in the manner set forth in the consent decree. (ECF
No. 115.)
The Clerk is directed to send a copy of this Memorandum
Opinion and Order to counsel of record.
IT IS SO ORDERED this 29th day of September, 2021.
ENTER:
David A. Faber
Senior United States District Judge

17