Envtl. L. Rep. 20,559
AMERICAN PETROLEUM INSTITUTE аnd National Petroleum Refiners
Association, Petitioners,
v.
UNITED STATES ENVIRONMENTAL PROTECTION AGENCY and Carol M.
Browner, Administrator, United States
Environmental Protection Agency, Respondents,
Renewable Fuels Association, Intervenor.
Nos. 94-1502, 94-1540, 94-1590 and 94-1654.
United States Court of Appeals,
District of Columbia Circuit.
Jan. 9, 1996.
On Motion for Award of Attorneys' Fees.
Michael F. McBride and Rita M. Theisen for petitioners, with whom G. William Frick, David T. Deal, John E. Reese, and Maurice H. McBride were on the motion for award of attorneys' fees.
Lois J. Schiffer, Assistant Attorney General, and Timothy Burns, Trial Attorney, Environmental Defense Section, United States Department of Justice, for respondents.
Before WILLIAMS, SENTELLE, and RANDOLPH, Circuit Judges.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge:
American Petroleum Institute and National Petroleum Refiners Association (hereinafter "petitioners" or "API") move for an award in the amount of $334,755 for attorneys' fees incurred in connection with their successful petition for review of an Environmental Protection Agency ("EPA") regulation. See American Petroleum Inst. v. EPA,
In the underlying litigation, petitioners challenged EPA's regulations implementing the Reformulated Gasoline ("RFG") program established by Congress in Sec. 211(k), (42 U.S.C. Sec. 7545(k)), of the Clean Air Act ("CAA"), 42 U.S.C. Sec. 7401, et seq. (1988 & Supp. V 1993). That program mandated the promulgation of regulations to achieve clean air goals through reformulation of conventional gasolines and specified minimum perсentages of oxygen for such fuels, thus requiring the use of oxygenates. 42 U.S.C. Sec. 7545(k)(1), (2). The EPA regulations at issue required, inter alia, that 30 percent of the oxygen required to be used in RFG comes from renewable oxygenates, as opposed to non-renewable oxygenates such as those produced by petitioners. Regulation of Fuels and Fuel Additives: Renewable Oxygenate Requirement in Reformulated Gasoline, 59 Fed.Reg. 39,258 (1994).
Petitioners sought review in the proceeding which underlies the present fee petition. The facts and decision are set forth in our prior opinion, American Petroleum Institute v. EPA,
II. DISCUSSION
A. Petitioners' Eligibility for a Fee Award
Petitioners now move for attorneys' fees under 42 U.S.C. Sec. 7607(f), which provides that for judicial proceedings on petitions for review of EPA's regulations under the CAA "the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate." There are two primary tests for determining when an award of attorneys' fees is "appropriate" under section 7607(f): 1) whether the party prevailed on the merits; and 2) whether the party's litigation furthered the purposes of the statute and the proper implementation and interpretation of the Act. See Sierra Club v. EPA,
The government, however, challenges the reasonableness of portions of the award prayed. Though some of the government's arguments are without merit, some correctly suggest grounds on which we should disallow portions of the fees sought.
B. The "Distinctly Different Claims"
The government argues that we should disallow a portion of the fees prayed because petitioners argued five grounds for the invalidity of the regulations and the court based its decision on only one of them. In the government's view, this means that we should eliminate fees attributable to the other arguments under the theory that where a party raises "distinctly different claims for relief that are based on different facts and legal theories," in seeking fees the party must establish an entitlement to fees for each subset of claims separately. See Hensley v. Eckerhart,
Petitioners did not raise any claims distinct and separate from the one on which they prevailed. They pursued only one claim for relief--the invalidity of the regulation at issue. They argued five defensible bases for that invalidity. Even the government concedes that the merits panel accepted the soundness of not only the principal argument upon which we based our holding, but also, in dicta, of the second and third arguments raised by petitioners. See
C. Reasonableness
We state at the outset that in evaluating the reasonableness of all the elements of billing, items of expense or fees that may not be "unreasonable between a first class law firm and a solvent client, are not [always] supported by indicia of reasonableness sufficient to allow us justly to tax the same against the United States." In re North (Shultz Fee Application),
1. Questions of Reasonableness of Specific Items
Petitioners' request employs the familiar formula of professional hours expended multiplied by the hourly rate of the billing professional, which is often called the lodestar. See, e.g., National Ass'n of Concerned Veterans v. Secretary of Defense,
In the second step of lodestar analysis, we must determine whether petitioners have carried their burden of demonstrating that each time block billed at the reasonable rates was itself a reasonable expenditure of time. We first note that the petition reflects an apparent arithmetic error of $1,000. The fee request seeks fees of $287,370 for representation from June, 1994, to February, 1995. Monthly billing statements for that time period document only $286,370. We therefore first deduct $1,000 to correct the apparent error in calculation.
Next, we will make adjustments in the petition for several items as to which petitioners have not carried their burden of establishing sufficient reasonableness to warrant taxing fees against the United States. See Bush Fee Application,
Second, McBride bills for attending a press conference on July 13, 1994. Costs associated with media relations, however, are not "costs of litigation" under 42 U.S.C. Sec. 7607(f), and we therefore cannot authorize their reimbursement. Cf. Meese,
Third, the government argues that petitioners should not be reimbursed for their attorney's attendance at a congressional hearing that took place on June 24, 1994, which was before the ROR even issued. The government notes that McBride billed five hours for attending the hearing, and it argues that it was unnecessary for the lead partner in the case to spend this much time as a spectator at the hearing, especially since petitioners merely cited the transcript of that hearing in a footnote in their briefs. Likewise, the government objects to petitioners' claims for fees billed by McBride for attending the oral argument and discussing extensively a separate, unrelated case filed with this court, Ethyl Corp. v. EPA,
As noted above, section 7607(f) permits reimbursement of the "costs of litigation ... including reasonable attorney ... fees" and we would therefore have to find McBride's fees for attendance at the hearing and the oral argument to be costs of litigation and reasonablе attorney fees in order to award fees under the section. McBride's attendance at the hearing and the oral argument is akin to the "defensive monitoring" of other prosecutions that we have declined to reimburse in various criminal cases seeking attorneys' fees under 28 U.S.C. Sec. 593(f). See, e.g., In re North (Gardner Fee Application),
Fourth, the government raises an objection to petitioners' claim for fees for the preparation and filing of a petition for review on behalf of the Oxygenated Fuels Association, another party whose petition for review was consolidated with the one filed by petitioners. Petitioners state that they asked their counsel to assist the Oxygenated Fuels Association in part because an order consolidating several petitions for review cautioned the parties in the consolidated cases to avoid repeating the arguments made by petitioners, and petitioners interpreted this as extending to coordinating with the Oxygenated Fuels Association. The billing statement for petitioners' counsel, however, reveals that they actually prepared the petition for review filed by the Oxygenated Fuels Association, not that they merely consulted about the duplication of arguments. Because these are fees that are properly attributed to the Oxygenated Fuels Association rather than to petitioners, we will deduct the 1.5 hours billed by McBride and 5.5 hours billed by Theisen in this matter.
In sum, the deductions applicable for specific items are:
----------------------------------------------------------------- : Amount rеquested : : $287,370 : ----------------------------------------------------------------- : Arithmetic error : $1,000 : : ----------------------------------------------------------------- : Document deliveries : $1,930 : : ----------------------------------------------------------------- : Press conference : $300 : : ----------------------------------------------------------------- : Hearing and argument fees : $2,100 : : ----------------------------------------------------------------- : Oxy. Fuels Ass'n petition : $1,825 : : ----------------------------------------------------------------- : Total specific reductions : $7,155 : : ----------------------------------------------------------------- : Subtotal of fee request : : $280,215 : -----------------------------------------------------------------
2. General Questions of Reasonableness
The government maintains that petitioners should not recover any fees for the motion for summary reversal because it was clearly inappropriate to request summary disposition in a complicated case of first impression. See D.C.Circuit Handbook of Practice and Internal Procedures 75 (1994) ("Parties should avoid requesting summary disposition of issues of first impression for the Court."). Petitioners respond that the question raised in the motion for summary reversal was not of first impression since the issue of EPA's authority under section 7545(c) of the CAA was previously litigated in Amoco Oil Co. v. EPA,
Despite petitioners' assertion, however, it is clear that the issue of the legality of the ROR, which petitioners challenged immediately upon its promulgation, was one of first impression and was not appropriate for summary disposition, as it required an extensive review of the RFG program, the ROR, and the requiremеnts of the CAA. In fact, petitioners themselves in their reply to the government's partial opposition to their motion for attorneys' fees state that "this was a complex case." As noted in the Handbook of Practice and Internal Procedures at 75, "[m]otions for summary reversal are rarely granted, and only where the merits are 'so clear, plenary briefing, oral argument, and the traditional collegiality of the decisional process would not affect [the Court's] decision.' " (quoting Sills v. Bureau of Prisons,
The government also takes issue with the number of hours billed by petitioners' attorneys for certain tasks. Petitioners reply that the hours spent were reasonable and that once they have provided documentation of their fee request, the burden falls on the government to go forward with evidence that the fees are erroneous. See, e.g., National Ass'n of Concerned Veterans,
The government first questions the reasonableness of spending approximately 550 hours (once the specific task deductions are made) on the preparation of the stay petition filed with EPA and the motions for а stay and for summary reversal or expedited consideration filed with the court. The motions filed with the court were each twenty pages long, plus attachments, and the motion filed with EPA was somewhat shorter. The government argues that it was unreasonable to devote approximately fourteen weeks worth of attorney time to these motions and that it was also unreasonable for most of this time to have been billed by partners rather than associates. See Delaware Valley Citizens' Council,
The Supreme Court in Hensley,
As for the distribution of these hours between partner and associate time, the government contends that petitioners fail to show the reasonableness of the lead partner billing most of this time, as they provide no explanation other than their preference for having McBride's personal attention to their case. Clеarly this is not an unreasonable practice between a first class law firm and a solvent client. But we must always require indicia of reasonableness sufficient for us to justify taxing this against the United States. Bush Fee Application,
But, as petitioners remind us, in Price v. Marshall Erdman & Assoc., Inc.,
Thus, the fees awarded for the summary reversal or expedition and stay motions will be as follows:
----------------------------------------------------------------- : Fees requested for motions : : $139,387.50 : ----------------------------------------------------------------- : Deduction for reasonableness : $34,846.88 : : ----------------------------------------------------------------- : Subtotal for motions : : $104,540.62 : ----------------------------------------------------------------- : Deduction summary reversal : $15,681.09 : : ----------------------------------------------------------------- : Fees awarded for motions : : $88,859.53 : -----------------------------------------------------------------
With the deductions we have made, the current subtotal of the fees requested for the pre-decision litigation is $229,687.03.
The government next сhallenges the fees expended on writing the opening brief, asserting that the 79 hours claimed by petitioners' attorneys, all of it by partners, is excessive, especially in light of the time already spent on motions that included the same arguments. Upon review, it appears to us that petitioners have carried their burden of establishing the reasonableness of these hours and we will make no reduction for the time spent on the opening brief.
The government makes a stronger complaint about the partner time spent on the reply brief, for which petitioners seek reimbursement for approximately 120 hours billed by McBride. The reply brief counters the arguments in EPA's brief by reiterating рetitioners' initial arguments and highlighting the flaws in EPA's position, and it contains cites to some additional cases. Petitioners fail, however, to carry their burden as to why it was necessary to spend substantially more time on the reply brief than on the opening brief. Based on our review of the reply brief, we conclude that it would have been reasonable for an experienced partner to have spent 60 hours preparing the reply brief and therefore deduct $18,000 for the additional 60 hours of partner time.
The next point of contention is the 126.25 hours spent in preparation for oral argument, of which 116.25 hours were billed by McBride, 2.25 hours were billed by Theisen, and 7.75 hours were billed by a paralegal. The government notes that petitioners had fifteen minutes of argument time and asserts that the amount spent in preparation was excessive, especially since the court observed in another case that it appeared excessive to spend 93 hours preparing for oral argument given the substantial amount of time already spent researching and writing the briefs. Kennecott Corp.,
The deductions for the preparation of the briefs and oral argument are as follows:
----------------------------------------------------------------- : Subtotal pre-decision fees : : $229,687.03 : ----------------------------------------------------------------- : Deduction reply brief : $18,000 : : ----------------------------------------------------------------- : Deduction oral argument : $10,875 : : ----------------------------------------------------------------- : Total deductions : $28,875 : : ----------------------------------------------------------------- : Total pre-decision fees : : $200,812.03 : -----------------------------------------------------------------
Accordingly, we will award petitioners $200,812.03 for attorneys' fees incurred before our decision issued in this case.
D. Post-decision Fees
Petitioners also filed a supplemental motion seeking attorneys' fees totaling $47,385 for work done after this court issued its decision in API. Most of this work involved analysis of EPA's motion for rehearing and preparation of the motion for attorneys' fees.
First, the government objects to petitioners' request for 27.25 hours оf associate time and 6.25 hours of partner time for evaluating the rehearing petition filed by EPA. The government argues that this amount of time is excessive since the court decided EPA's petition without allowing petitioners to file a response to it and that only a small amount of time to review EPA's petition could possibly be justified. Petitioners maintain that they could not ignore the rehearing petition because it, along with the involvement of the Solicitor General, strongly suggested that the government might seek a writ of certiorari. They state that they reasonably requested that their attorneys assess the strength of the petition, especially given the real-life implications of the ROR for their industry and the fact that EPA had issued a notice implying that it might retroactively enforce the ROR if it eventually prevailed on the merits. We agree with petitioners that it was reasonable for them to analyze and be prepared to respond to EPA's petition for rehearing and we find reasonable the amount of time spent in this connection.
We finally reach the last area of contention, the number of hours expended in preparation of the motion for attorneys' fees. While fees for the preparation of fee motions are not reimbursable under all fee-shifting statutes, see, e.g., In re North (Gadd Fee Application),
First, petitioners' "novel" argument, whether a non-profit organization with for-profit entities as members can recover attorneys' fees under the CAA, was a small part of the petition, appearing only in a footnote in their initial motion. Second, we note that it is petitioners' attorneys' familiarity with the law and procedure for fee petitions, and not petitioners' familiarity, that is relevant to the number of hours spent by their attorneys preparing the fee request. Upon review of the fee motion, we conclude that petitioners have not carried the burden of demonstrating that over two weeks of associate time and оne week of lead partner time was reasonably expended in preparing the fee motion. This is especially true in light of the laconic work descriptions that have been a pervasive problem throughout petitioners' fee motion. We conclude that it would have been reasonable to devote 60 hours of associate time and 30 hours of partner time to the fee motion and thus will deduct $10,200 (30.75 associate hours at $200 per hour and 13.5 lead partner hours at $300) from the amount claimed.
After deducting $10,200 from the $47,385 in fees incurred after we issued our decision in API, we will award $37,185 in post-decision fees.
III. CONCLUSION
For the reasons set forth above, it is ordered that petitioners be awarded $237,997.11 in reasonable attorneys' fees they incurred in connection with this court's decision in API and this fee application.
Judgment accordingly.