Ohio Valley Environmental Coalition et al v. Fola Coal Company, LLC

Filing 193

MEMORANDUM OPINION AND ORDER granting Plaintiffs' 183 MOTION for an Interim Award of Attorneys' Fees and Costs; and AWARDS attorneys' fees amounting to $420,790.80 and expenses for Appalachian Mountain Advocates in the amount of $101,115.44 and Public Justice in the amount of $3,578.38. Signed by Judge Robert C. Chambers on 5/2/2017. (cc: counsel of record; any unrepresented parties) (taq)

IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION

OHIO VALLEY ENVIRONMENTAL
COALITION, WEST VIRGINIA
HIGHLANDS CONSERVANCY and
SIERRA CLUB,
Plaintiffs,
v.

CIVIL ACTION NO. 2:13-21588
(Consolidated with 2:13-16044)

FOLA COAL COMPANY, LLC,
Defendant.

MEMORANDUM OPINION AND ORDER
Pending before the Court is Plaintiffs’ Motion for an Interim Award of Attorneys’ Fees
and Costs (ECF No. 183). Plaintiffs accounted for time and costs relating to the finding of liability
for Surface Mines Nos. 2 and 6 and excluded time and costs spent on Surface Mine No. 4A, for
which the Court did not find Defendant liable. Defendant challenges the reductions taken to
account for the failure to prevail on the liability for Mine 4A. For the following reasons, the Court
finds Plaintiffs’ accounting reasonable and GRANTS Plaintiffs’ Motion.
I.

BACKGROUND
Plaintiffs brought the instant case in August of 2013, alleging violations of the Clean Water

Act (CWA) and the Surface Mining Control and Reclamation Act (SMCRA) regarding Surface
Mine No. 4A (Mine 4A). See Pls.’ Compl., ECF No. 1. The Court consolidated the Mine 4A
case with a similar case alleging the same legal violations for Surface Mine Nos. 2 and 6 (Mines
2 and 6). See Order Granting Consolidation, ECF No. 17. The Court bifurcated the case into

two phases—the first phase to determine liability and the second to determine relief.

See

Scheduling Order, ECF No. 11. After a bench trial, the Court found Defendant liable for violating
its permits for Mines 2 and 6, but the Court did not find Defendant liable for permit violations
regarding Mine 4A. See Mem. Op. & Order, ECF No. 119. The Court granted injunctive relief
after the second phase for Mines 2 and 6 but delayed providing a specific remedy, instead electing
to appoint a Special Master to assist in creating a proposed plan forward. See Mem. Op. & Order
Regarding Inj. Relief, ECF No. 161. Plaintiffs, therefore, have prevailed fully on liability and
partially on the remedy for Mines 2 and 6, but Plaintiffs did not prevail on claims for Mine 4A.
Accordingly, attorneys’ fees and costs must reflect only the claims in which Plaintiffs were
successful.
II.

LEGAL STANDARD
Pursuant to Federal Rule of Civil Procedure 54(d), 33 U.S.C. § 1365(d), and 30 U.S.C.

§ 1270(d), Plaintiffs move the Court for an interim award of attorneys’ fees and costs. As
indicated in the citizen suit provision of the CWA and the SMCRA, “[t]he 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.” 33 U.S.C. § 1365(d); see also 30
U.S.C. § 1270(d).1 Plaintiffs carry the burden to establish entitlement to a fee award. See Spell
v. McDaniel, 852 F.2d 762, 765 (4th Cir. 1988). To recover attorneys’ fees and costs under the
prevailing party standard, the plaintiff must be the prevailing party in the action, and the court

Section 1270(d) does not include the phrase “prevailing or substantially prevailing
party”, allowing the court to award attorneys’ fees to any party whenever appropriate.
1

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must determine that the requested attorneys’ fees, expert witness fees, and miscellaneous costs are
reasonable. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
III.

DISCUSSION
The CWA and the SMCRA citizen suit provisions allow for an award of attorneys’ fees

and costs after a court enters any final order, and the Court finds it appropriate to allow for an
interim award in this case as the Court has found liability and injunctive relief necessary to remedy
past violations. “Under fee-shifting statutes such as the [CWA and the SMCRA], courts may
order an interim fees award, but ‘only when a party has prevailed on the merits of at least some of
his claims.’” Greenfield Mills v. Carter, 569 F. Supp. 2d 737, 743 (N.D. Ind. 2008) (quoting
Hanrahan v. Hampton, 446 U.S. 754, 758 (1980)). Other district courts have granted interim
attorneys’ fees and costs when the court determined liability but refrained on issuing a final remedy
until the parties could settle on an appropriate and cost-effective solution. See id. at 744 (citing
the reach of the case, time involved in litigation, resource disparity of the parties, and plaintiff’s
valid claim as justification for issuing interim fees under CWA); Maine People’s All. v.
Holtrachem Mfg. Co., No. 1:00-cv-00069-JAW, 2016 WL 5676887, at *3 (D. Me. Sept. 30, 2016)
(issuing an interim attorney award under the Resource Conservation and Recovery Act containing
similar “final order” language); S. Appalachian Mountain Stewards v. A&G Coal Co., No.
2:12CV00009, 2014 WL 4955702, at *2 (W.D. Va. Oct. 2, 2014) (finding that plaintiff prevailed
to justify interim award).
Here, the Court found Defendant liable for violating its permits for Mines 2 and 6 and
determined that injunctive relief was appropriate and necessary to remedy these violations. See
Mem. Op. & Order Regarding Inj. Relief, ECF No. 161, at 1. Plaintiffs have substantially
prevailed on these claims. Delaying an award for attorneys’ fees and costs would cause further

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financial hardship on Plaintiffs as this case continues to wait for final judgment, gathering
hundreds of thousands of dollars in attorneys’ fees and other expenses in the process. See Pls.’
Mem. in Supp., ECF No. 184, at 4. Defendant did not challenge Plaintiffs’ request for an award
before the entry of final judgment. See Def.’s Resp., ECF No. 189. Accordingly, the Court finds
that an interim award for attorneys’ fees and costs is appropriate.
Finding that Plaintiffs are the prevailing party in this case, the Court next turns to whether
the requested attorneys’ fees and costs are reasonable. When determining the reasonableness of
attorneys’ fees, the court must first determine an appropriate lodestar figure by multiplying the
number of hours by a reasonable hourly rate. See Robinson v. Equifax Info. Servs., LLC, 560 F.3d
235, 243 (4th Cir. 2009). The requested attorney rate for each attorney reflects similar rates
granted to the same three attorneys in a previous case by this Court. See Ohio Valley Envtl. Coal.
v. Fola Coal Co., Civ. No. 2:13-5006, ECF No. 221 (S.D.W. Va. Aug. 30, 2016). The only
departure involves Mr. J. Michael Becher who seeks a modest increase of $20 per hour to account
for gained experience. Pls.’ Mem. in Supp., ECF No. 184, at 8. Defendant did not object to the
requested attorney rate, and the Court finds that these rates are reasonable for the experience and
expertise of each attorney and accounts for the complexity of this case. Accordingly, Mr. Becher
shall receive $260 per hour, Mr. James M. Hecker shall receive $450 per hour, and Mr. Joseph
Lovett shall receive $425 per hour.
The reasonable hourly rate must be multiplied by the reasonable number of hours worked
to calculate the overall award for attorneys’ fees. Plaintiffs’ level of success is a “crucial factor
in determining the proper amount of an award”, and a court should reduce a fee award “if the relief,
however significant, is limited in comparison to the scope of the litigation as a whole.” Hensley,
461 U.S. at 439-40; see also Tex. State Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. 782,

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793 (1989) (“[T]he degree of the plaintiff’s overall success goes to the reasonableness of the award
under Hensley, not to the availability of a fee award vel non.” (citation omitted)). To adjust the
award, a court should subtract time and expenses attributable to unsuccessful and unrelated claims
and award a percentage of the remaining amount based on the level of overall success. See Ohio
Valley Envtl. Coal. v. Hurst, Civ. No. 3:03-2281, 2011 WL 3563295, at *17 (S.D.W. Va. Aug. 11,
2011). When a case involves a common core of facts and legal theories, however, it is difficult
to divide time and expenses expended per claim. See Hensley, 461 U.S. at 434. “Time spent on
unsuccessful claims is related to time spent on successful claims for purposes of determining a
reasonable fee if the issues litigated involve a ‘common core of facts’ or related legal theories.”
Hurst, 2011 WL 3563295, at *17 (quoting Hensley, 461 U.S. at 435).
Here, Plaintiffs substantially prevailed on the liability and remedy issues relating to Mines
2 and 6. Plaintiffs’ attorneys apportioned time spent on the case by work category, accounting
separately for time spent solely on Mine 4A. See Pls.’ Mem. in Supp., ECF No. 184, at 6-7. The
specific time and expenses relating to Mine 4A are excludable, but the work on common legal
issues that involve a similar core of facts is compensable. Mr. Hecker details how he excluded
time spent on Mine 4A from his documented time in his affidavit. See Hecker Aff., ECF No. 1831, at 6-7. According to these exclusions, the time spent on site visits was reduced by 50%; the
time involving expert reports was reduced by the number of pages that mentioned Mine 4A; Mr.
Hecker excluded his time attending depositions of Plaintiffs’ experts to avoid duplicate staffing;
stream sampling was reduced by one-third; expert reports were reduced if discussing specific
causation on the separate sites; and other care was taken to reduce time by a percentage relating to
the number of pages devoted to Mine 4A. Id. Mr. Lovett and Mr. Becher followed the same

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calculations to reduce their time and costs. See Lovett Aff., ECF No. 183-2, at 3; Becher Aff., ECF
No. 183-3, at 6.
In its Response, Defendant challenges only the calculation of time spent on the prevailing
claims, specifically addressing the amount of reductions and exclusions. See Def.’s Resp., ECF
No. 189.

Because Mr. Hecker’s exclusions are admittedly based on his “best judgment”,

Defendant disagrees with the method of reducing the award total. Defendant advocates for a
simpler method that reduces the amount of time and expenses by one-half to account for the fact
that Plaintiffs lost one of the two cases that were consolidated. Id. at 5.
The Court disagrees with Defendant’s method and does not find that a simple reduction by
50% would adequately award Plaintiffs for their successful claims. Although Plaintiffs prevailed
on one of the two cases the Court consolidated, the case involved three mines (suggesting at most
a one-third reduction) and involved a common set of facts and legal theories that do not justify
such a simplified reduction. The Court has discretion in determining whether to reduce the award
by a specific number of hours that can be ascertained as unrelated to the successful outcome or by
a straight percentage to account for limited success. See Hensley, 461 U.S. at 436-37. When
claims contain similar facts and legal theories, however, the Supreme Court and the Fourth Circuit
have “explicitly rejected the notion that a court may calculate an award of attorneys’ fees by means
of a purely mathematical comparison between the number of claims pressed and the number
prevailed upon.” Brodziak v. Runyon, 145 F.3d 194, at 197 (4th Cir. 1998); see also Hensley, 461
U.S. at 435 n.11 (“Such a ratio provides little aid in determining what is a reasonable fee in light
of all the relevant factors.”). By consolidating the two cases involving the three different mines,
the Court recognized that the issues presented involved common questions of law and fact. See
Order Granting Consolidation, ECF No. 17. The Court finds that Plaintiffs’ careful calculations

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excluding time spent solely on Mine 4A as well as a percentage of output based on references to
Mine 4A better encapsulates the compensable time spent on this litigation. Other federal courts
have applied similar reductions in cases that involved a portion of unsuccessful claims. See, e.g.,
Vaughns v. Bd. of Educ. of Prince George’s Cty., 598 F. Supp. 1262, 1267 (D. Md. 1984) (applying
27% reduction based on trial transcript spent on unsuccessful claims); Elec. Privacy Info. Ctr. v.
U.S. Transp. Sec. Admin., 982 F. Supp. 2d 53, 55 (D.D.C. 2013) (applying 39% reduction based
on pages in summary judgment motion devoted to successful claim). Defendant did not challenge
the specific hours spent on each of the work categories, and the Court finds that the breakdown of
work is reasonable for a complex environmental litigation like this one.
Defendant raises three other concerns with the calculations that the Court will quickly
address. First, Defendant challenges charges for Mrs. Betsy Wing’s airfare when only Dr. Steve
Wing served as an expert in this case. Def.’s Resp., ECF No. 189, at 4. Plaintiffs submitted a
Supplemental Declaration by Mr. Becher explaining that Dr. Wing received treatment for
chemotherapy during the time of trial and required the assistance of his wife in order to testify.
See Suppl. Decl., ECF No. 192-1. Although the Court understands that Mrs. Wing’s assistance
was necessary, the Court does not find these extra costs to be “reasonable out-of-pocket expenses
incurred by the attorney which are normally charged to a fee-paying client.” Spell, 852 F.2d at
771. Plaintiffs chose Dr. Wing to serve as the expert witness in this case, and opposing parties
should only pay the reasonable and ordinary travel expenses incurred. The Court finds that Mrs.
Wing’s travel expenses to assist her husband fall outside the ordinary expenses that typically shift
to the opposing party. Therefore, the Court subtracts half of the travel expenses specified,
deducting $842.10 from Plaintiffs’ travel expenses. See Becher Aff., ECF No. 183-3, at 14.

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Second, Defendant challenges five invoices of transcripts from another case, labeled as
Stillhouse Branch. Def.’s Resp., ECF No. 189, at 4-5. Plaintiffs provided supplemental exhibits
that show that these transcripts were mislabeled as Stillhouse Branch but accurately represent costs
attributable to the instant case. Exh. 2, ECF No. 192-2. The Court finds that these costs are
compensable for this case. Lastly, Defendant highlights a miscalculation in Plaintiffs’ table
detailing attorneys’ expenses. Def.’s Resp., ECF No. 189, at 5 n.6. The Court thoroughly
calculated all of Plaintiffs’ provided hours and costs and agrees with Defendant’s finding. The
final awards are detailed in the tables below.
Therefore, the Court finds the following attorneys’ fees compensable:
Attorney
Hecker
Lovett
Becher
Total

Total Hours
637.25
153.75
501.75

Excludable
Hours
111.76
8.375
30.458

Compensable Hourly Rate
Hours
525.49
$450.00
145.375
$425.00
471.292
$260.00

Fee
$236,470.50
$61,784.38
$122,535.92
$420,790.80

The following expenses are also compensable:

Travel Expenses
Other Expenses
Expert Fees and Expenses
Transcripts
Total Expenses
Excluded Expenses
Compensable Expenses

Appalachian Mountain
Advocates
$15,292.45
$1,119.43
$95,835.55
$7,709.50
$119,956.93
$18,841.49
$101,115.44

Public Justice
$1,144.78
$2,433.60

$3,578.38
$0
$3,578.38

Accordingly, the Court GRANTS Plaintiffs’ Motion for an Interim Award of Attorneys’ Fees and
Costs in the amounts specified.

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IV.

CONCLUSION
The Court finds that Plaintiffs’ requested attorneys’ fees and costs are reasonable and

appropriately account for the unsuccessful claim involving Mine 4A. Therefore, the Court
GRANTS Plaintiffs’ Motion (ECF No. 183) and AWARDS attorneys’ fees amounting to
$420,790.80 and expenses for Appalachian Mountain Advocates in the amount of $101,115.44
and Public Justice in the amount of $3,578.38.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any
unrepresented parties.

ENTER:

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May 2, 2017