916 F. Supp. 2d 15
D.D.C.2013Background
- Plaintiffs Conservation Force and others challenged FWS’s endangered status actions for wood bison and four permit denials (Counts I–IV) under the ESA and APA.
- The court granted summary judgment to defendants on Counts I, II, and IV, and to plaintiffs on Count III, remanding the permit decisions for further consideration.
- FWS completed the 12-month finding and five-year review on January 31, 2011, after plaintiffs filed suit on June 23, 2010.
- Plaintiffs sought $258,681.10 in attorney fees and costs; defendants urged a substantially smaller award.
- The court ultimately awarded $39,390.40 in fees and $350 in costs, with detailed adjustments to hours and rates.
- Count III is treated as an APA challenge governed by EAJA rather than ESA, affecting the fee framework and rates.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Catalyst theory for Counts I–II fees | Conservation Force satisfied catalyst theory thresholds. | Actions would occur anyway; no causation shown. | Counts I–II not recoverable under catalyst theory. |
| Count IV recoverability | Count IV merited fees due to related success. | Argument forfeited and meritless. | Count IV arguments forfeited; no fees for Count IV. |
| Governing fee provision for Count III | Count III falls under ESA fee provisions. | Count III falls under EAJA as APA challenge. | Count III governed by EAJA (not ESA). |
| Rate and hours determinations | Apply higher market rates and allocate hours proportionally. | Limit to EAJA cap and reasonable hours; perform reductions. | EAJA cap and 50%/25% hour reductions applied; final fee award calibrated. |
Key Cases Cited
- Sierra Club v. EPA, 322 F.3d 718 (D.C. Cir. 2003) (catalyst theory permissible under ESA fee provision)
- Pub. Citizen Health Research Grp. v. Young, 909 F.2d 546 (D.C. Cir. 1990) (causation threshold for catalyst theory)
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (scope of citizen suit fee provisions under ESA)
- Kennecott Corp. v. EPA, 804 F.2d 763 (D.C. Cir. 1986) (fee reductions when claims are partially unsuccessful)
- Select Milk Producers, Inc. v. Johanns, 400 F.3d 939 (D.C. Cir. 2005) (special factor and EAJA rate enhancement requirements)
- Role Models Am., Inc. v. Brownlee, 353 F.3d 962 (D.C. Cir. 2004) (case-by-case reduction of hours for deficient billing records)
- Masonry Masters, Inc. v. Nelson, 105 F.3d 708 (D.C. Cir. 1997) (cost-of-living adjustments under EAJA cap)
- American Petroleum Inst. v. EPA, 72 F.3d 907 (D.C. Cir. 1996) (reasonableness standard for attorney hours under EAJA)
- Marek v. Chesny, 473 U.S. 1 (U.S. 1985) (distinction between fees and costs under fee-shifting statutes)
- Hensley v. Eckerhart, 461 U.S. 424 (U.S. 1983) (practice of reducing fees to reflect limited success)