Browder v. City of Moab

Boyd Rosene court itself.” as of the well BROWDER, Assoc., T. Plaintiff- Agency, Mun. Gas William Inc. v. Kan.

& Cir.1999). Sev- Appellant/Cross-Appellee, certification here. support reasons eral distinctively a presented is question may have issue and its resolution state-law MOAB; County; The CITY OF Grand an is- apparently it is implications; broad County and the Solid Waste Grand Mexico; impression New sue of first Management # De Service District that therе are no stipulated have parties fendants-Appellees/Cross-Appellants. all resolved so that disputes factual to be law; of state presented question that is 04-4198, Nos. 04-4206. way question of which regardless and resolved, disposi- it should be presented is Appeals, States Court of United of this case. tive Tenth Circuit. certify question this to We therefore 14, 2005. Oct. Supreme Court. The clerk

New Mexico cоurt shall submit to the New Mexico this this copy a certified

Supreme Court

order, together copies briefs court, of the district copies

filed in this greatly appreciate judgment.

court’s We request. of this

the consideration also trans-

The clerk of this shall copy

mit a of this certification order proceedings

counsel for all court. Because the defendants failed grant

to seek certification before

summary plaintiffs have ob- judgment certification, the defendants are

jected to necessary fees and pay

directed to New Mexico

costs accordance with the §Ann.

rules. N.M. Stat. 39-7-11 agrees

If the New Mexico any fur- accept question, ‍​‌‌‌‌‌‌​​​‌‌‌‌​​‌‌‌‌​‌‌​‌​​​​​​‌​‌​​​‌​‌‌‌​‌‌‌‌​‍the certified proceedings governed shall be

ther governing liti-

appellate rules and statutes N.M. Ann.

gants before court. Stat.

§ 39-7-9

Conclusion ABATED appeal pend- is ordеred question of the certified

ing resolution

herein. Zody

Michael A. of Parsons Behle & Latimer, UT, City, Salt Lake for Plaintiff- Appellant/Cross-Appellee. Hathaway,

Benson L. (Stephen Jr. W. briefs) Geary him on of Kirton & McConkie, UT, City, Salt Lake for Defen- dants-Appellees/Cross-Appellants. McCONNELL, McKAY, Before TYMKOVICH, Judges. Circuit McKAY, Judge. Circuit property Plaintiff is a Colorado owner City property whose land abuts of Moab (“Moab I containing former Class landfill landfill”). multiple Becausе of environ- mental regarding ownership concerns landfill, management 5. Defendants must maintain and file Water pursuant suit Clean brought (“CWA”), required by the reports the Resource Conservation Class IV Act (“RCRA”), as several Recovery Act as well permit. sought of action. Plaintiff

state-law causes District 6. To the extent Service demanding compliance with injunction an at any outsources work the Moab money to statutes addition the relevant landfill, the Service District must tо the state-law causes of damages related and monitor this work ensure all, on seven sought In he relief action. required reports appropriate- all are claims. ly filed. litigation ensued. After Protracted I, Aplt.App., Vol. at 170-71. dis- of the state-law claims were most court,1 of by the district three par- missed also ordered each The district court during to be resolved the seven remained attоrney’s ty to bear their own costs claims and one the bench trial—two RCRA judg- amend the fees. moved to Plaintiff did not Although claim. CWA arguing prevailing ment that he was claims, on most of his the district prevail party and therefore entitled to costs and relief on granting did enter an order court attorney’s fees. The district court denied The one of his RCRA causes of action. appeal Both now the motion. sides as to the other court ruled for Defendants denying parties’ district court’s order both and the CWA claim. RCRA claim attorney’s fees.2 injunction by Plaintiff or- obtained jurisdiction over the dis We have injunctive specific items of relief: dered six attorney’s pur of fees trict court’s denial ... 1. The Defendants shall erect § to 1291. Awards of suant 28 U.S.C. surrounding the entire Moab fence generally fees are reviewed for landfill. of discretion. Mares v. Credit abuse must monitor combusti- 2. Defendants Raton, F.2d Bureau of at the Moab landfill on a gases ble Cir.1986). decision, reaching quarterly basis. review novo whether the district we de keep must all monitor- 3. Defendants standard, applied the correct ing equipment operational. fact for clear findings and we its review moni- 4. Defendants must continue to Hoover, Indian Tribe v. error. See Kiowa landfill cover on a tor the Moab (10th Cir.1998). prevent extensive regular basis appeal At in this is the issue

pooling puddling or and to diminish RCRA, is codified provision fees which follow- the risk of extensive erosion 6972(e).3 § Before address- ing storms. U.S.C. 54-2(f) (mandating that motions for at- negligence claim was CivR 1. Dismissal of Plaintiff’s days torney’s stipulation filed no later than 30 to dismiss fees be facilitated Plaintiff's entry judgment). after the the claim. attorney's pursuant to directly sеek fees Although did not raise 3.Defendants Defendants court, 1365(d), attorney's pro- raising § fees argument it 33 U.S.C. to the district CWA, § improper. as well as appeal vision of for the first time on is not are indis- sponte ruling operative sections of each statute sua on attor- The district court's 6972(e) tinguishable. negated responsibility Our discussion ney's Defendants’ 1365(d), applies equal force raising this issue first to the district court. not be disсussed entry judgment, the sections will therefore to the Defendants Prior separately. ability DU- lacked the to raise the issue. See party is ing whether either entitled to an Our view support finds precedent. City Burlington we must deter- Court 557, 561-62, proper Dague, construction mine the of the stat- (1992), portion relevant of that L.Ed.2d 449 ute. The section court, Court stated: issuing any reads: “The final in any brought pursuant 7002(e) order action Seсtion the SWDA and may 505(d) ... award litiga- this section costs of of the CWA authorize a court (including attorney tion reasonable and ex- to “award of litigation costs (including fees) pert witness or sub- attorney fees)” reasonable ... to a stantially prevailing party, whenever the “prevailing substantially court an appro- 6972(e) determines such award is party.” § (emphasis U.S.C. 6972(e). priate.” § added); 1365(d) U.S.C. There is § (emphasis U.S.C. relаtively interpreting added). little case law this language This is similar to that However, section of it is from RCRA. clear many of other federal fee-shifting stat permissive language by Congress the used ‍​‌‌‌‌‌‌​​​‌‌‌‌​​‌‌‌‌​‌‌​‌​​​​​​‌​‌​​​‌​‌‌‌​‌‌‌‌​‍utes, see, 1988, §§ e.g., U.S.C. 2000e- enacting (e.g.“may”) in this statute that an 5(k), 7604(d); construing our case law attorney’s fees the prevailing what is a applies “reasonable” fee uni party discretionary. formly to all Flight is of them. Attend Zipes, 754, 758, 2,109 ants v. 491 U.S. n. In light of the dearth of case law con 2732, 2735, S.Ct. n. 105 L.Ed.2d 639 statute, struing urges this the (1989). court precedent interprets to follow which Although Supreme the specifi- Court was attorney’s provision the of 42 fee U.S.C. cally concerned the “reasonable fee” 1988(b). § path persuasive. find this We 6972(e), § language of logic equally its permissive Section 1988 also uses language applicable prevailing to the party language in empowering grant courts to an award of in found the same section.5 In light of the attorney’s any proceed fees: “In action or general Court’s recognition of ing provision to enforce a ... section[ ] the interchangeability of the in- case law title, court, ... ... in of this its terpreting attorney’s statutes, similar fees discretion, may prevailing party, allow 6972(e), e.g. 1988(b), § § 2000e-5(k), § States, than other the United a reasonаble 7604(d), § we now look to Supreme 1988(b) attorney’s § fee....” U.S.C. Court and Tenth Circuit case law in decid- extent, plain To some lan ing whether the district court was correct 1988(b) guage § appears grant courts in declining parties’ requests for fees. by broader discretion than that authorized § However, purposes, Applying our we this case law adds color to 6972(e)’s view sufficiently § the two sections as analo аdmittedly ambiguous notation gous to use case in interpreting law either about the standards for determining one’s statute interchangeably.4 prevailing party status and also deter- (2d 4. Certain clearly lington, Cir.1991) sections of each statute are 935 F.2d similar, rendering interchangeability of (explaining principles governing that "the fee impractical. case law example, For applicable awards undеr [§ 1988] are 6972(e) authorizes an award of fees to a 6792(e)), provisions” fee rev’d "substantially prevailing party.” There is no grounds City Burlington on other sub nom. 1988(b). language such 557, 561-62, Dague, v. 505 U.S. 120 L.Ed.2d 449 making ruling, we are in accord with Dague City the Second Circuit. See v. Bur- to address opportunity district court the differ be the standards whether mines However, In Hens and defendants. because the determi plaintiffs this issue. tween Eckerhart, ruled ley v. gener prеvailing party7 nation of status is ‘should ordi that “a law, we will address that ally question a attorney’s fee unless an narily recover particular. issue in See Jenkins Jen render such would special circumstances Mo., 713-14 kins State of ” 424, 429, 103 unjust.’ 461 U.S. an award (8th Cir.1997) (explaining ques that “the (1983) (quoting 76 L.Ed.2d 40 status, statutory prevailing party tion of (1976)) 94-1011, 4p. (emphasis 5.Rep. No. issue”). addition, term, presents added). Whereas, Supreme Court not to announce some opportunity we take this Christiansburg Garment Co. ed principles regarding of law general defendants are EEOC give in an effort to award fees when to be awarded guidance as to the issues the district unreasonable, “frivolous, claim is plaintiffs it must address on remand. contin or that the groundless, so.” clearly after it became litigate ued to Noting presumption favor of 54 L.Ed.2d attorney’s awarding prevailing plаintiffs status is prevailing party Once fees, question turn to the of whether we determined, the court then determines the purposes in this case for prevailed Plaintiff request. See reasonableness-of-the-fee attorney’s fees obtaining an award of 6972(e); Hensley, 461 see also U.S.C. clearly on several of though even he lost 1933. at U.S. one a determining claims. In whether his no reason gave The district court nоt look to the prevailing plaintiff, we do parties to “bear when it ordered the ing weigh prevailing the case as a whole and attorney costs of action and own [their] claims. In against claims the defeated (Dist. I, Ct. Aplt.App., Vol. at fees.”6 stead, separate each claim is to be viewed Judgment). 2003 Order and March in ly practiced by as the Ninth Circuit give an ade Generally, district courts must Tacoma, 410 F.3d 644 City Thomas their decision re quate explanation for (9th Cir.2005). Thomas, the Ninth Cir fees, attorney’s for other garding requests prevailing as a recognized plaintiff cuit the record on which to base wise we have no trial, at one claim he won party as the Bartlett v. Martin Mar our decision. See that the defendants were despite the fact Ins. Support, Inc. Operations ietta Life claims, numerous other viсtorious on the (10th Cir.1994) Plan, 514, 519-20 410 F.3d at including a counterclaim. attorney fee is (reversing remanding (“The to recov fact that Plaintiff failed “did not because the district court sue liability is not a bar to on all theories of er petition for attor explain ruling its on the fees.”) in (emphasis recovery ground neys’ adequately”). On original). give the we remand the case alone 6972(e) disjunctive Although the uses gave court a second 7.

6. Plaintiff the district parties explaining as that “or” in denying explain opportunity to its reasons for substantially parties are well as it fees when Plaintiff an award has attorney's our attention entitled to judg- the order and a motion to amend filed "prevailing by parties to the directed the been judgment denied the ment. The district court Therefore, we for an- party” language. leave again its reasons for failed to articulate pre- "significant day of the other construction doing. so language in vailing party” found logic supported deciding of Thomas is in awarding what to consider a by the Court’s decision Farrar Supreme reasonable fee.9 The district analy- court’s Hobby, where the Court held that a appropriate attorney’s sis of the fee to be “when actual relief on plaintiff “prevails” awarded Plaintiff on remand should be claim materially the of his alters merits guided by the paradig- Court’s relationship parties between the in Hensley: matic case by modifying defendant’s behavior a prevail Where has failed to directly way plaintiff.” benefits the on a claim that respect is distinct all claims, from his successful the hours degree L.Ed.2d 494 The ultimate spent on the unsuccessful claim should magnitude of of success or relief obtained excluded in considering be the amount question eligibility is irrelevant aof reasonable fee. Where lawsuit at fee award. Id. 113 S.Ct. 566. claims, consists of a plaintiff related who Nonetheless, parties focus much of has won substantial relief should not quantum their attention on relief have his simply fee reduced actually doing, obtained Plaintiff. In so because the district court adopt did not point miss Farrar. each contention raised. But where the addition, ‍​‌‌‌‌‌‌​​​‌‌‌‌​​‌‌‌‌​‌‌​‌​​​​​​‌​‌​​​‌​‌‌‌​‌‌‌‌​‍Court noted in success, only achieved limited “necessarily Hensley signifi that it is the district court should award prevailing plaintiff cant that a did not re amount that is reasonable in relation to requested.” ceive all the relief the results obtained. case, 435 n. In this (emphasis S.Ct. 1933 on one of his won RCRA claims added). injunction when an against he obtained requiring comply Defendants them this, a case like where Plaintiff In certain portions of federal law as articulat only success,” partial “achieved or limited Certainly, ed change above. the calculation for reasonable attorney’s legal relationship between the is requires just more than determining qualify sufficient to Plaintiff for product “the of reasonably expended hours

party status.8 litigаtion on the as a whole times a reason However, hourly clearly Plaintiff also able rate” because such “may lost be an 436, on presents his other claims. This a some excessive amount.” Id. at 103 S.Ct. added). what difficult (emphasis task for the district court in 1933 Two questions rule, Ctr., 1186, general special (10th 8. As is the circumstances Med. 163 F.3d 1200 Cir. may that would make the 1998) nonetheless exist (explaining "plaintiffs give up that can attorney's unjust. fees in this case statutory part their entitlement to fees as of 429, 1933; Hensley, See 103 S.Ct. remand, arrangement”). the settlement On 179, see Donges, also Stewart v. 979 F.2d 184 may the district court consider whether this (10th Cir.1992) ("The presence 'special of cir- case is in line with those cited above which usually cumstances’ results in the award of no presented special circumstances. all."). recognized fees at We hаve numerous special cases that meet this circumstances generally general 9. We refer to this calcula test, although we have never articulated an lodestar, "product tion as the which is the overarching approach reviewing for them. attorney 'reasonably the number of hours ex See, e.g., Donges, (limiting 979 F.2d at 184 " pended’ hourly and a 'reasonable rate.' Rob attorney's extent of fee award to Edmond, 1275, City inson v. 160 F.3d 1281 responsible because "he was for the (10th Cir.1998) (citing Hensley, 461 U.S. at proceeding district court with the trial with- 433, 1933). S.Ct. 103 jurisdiction"); out Ellis v. Univ. Kansas

723 clearly it became so.” litigate after court. by the district addressed must be 422, Christiansburg, on 434 U.S. prevail “First, plaintiff fail did the district court to make It is for the to the claim[ ] unrelated that were claims Second, finding. that did he succeeded? on which of success achieve a level and REMANDED. REVERSED expended a reasonably the hours makes TYMKOVICH, Judge, Circuit making a fee

satisfactory for basis concurring. 434, 103 S.Ct. 1933. Id. at award?”10 of attor- an award can obtain majority plain that the agree I with the spent prosecuting time

ney’s fees for party” under the line of “prevailing tiff is a related to claim as well as those successful cases ana States United it. fee-shifting rights for civil lyzing statutes See, e.g., cases. Farrar and environmental

However, matter. that does not end the 103, Hobby, 506 v. discretion to court still retains The district (1992); v. City Burlington ‍​‌‌‌‌‌‌​​​‌‌‌‌​​‌‌‌‌​‌‌​‌​​​​​​‌​‌​​​‌​‌‌‌​‌‌‌‌​‍L.Ed.2d with the award commensurate adjust the 436, 103 Dague, 505 U.S. S.Ct. Id. at success obtained. degree of (1992); Buckhannon Bd. & L.Ed.2d 449 not amena inquiry is 1933. This last S.Ct. Home, Dep’t Health Inc. v. W. Va. a matter of Care table but is to a formulaic ble Res., & Human exercising this discre Id. discretion. L.Ed.2d 855 tion, however, record “[t]he we note crossed the thresh plaintiff therefore has thаt the district court assure us ought to eligi But mere eligibility it to fees. request and cut old ‘eyeball’ the fee did not ” step next is bility enough. arbitrary percentage.... down I Edmond, fees. write F.3d entitlement to reasonable City Robinson (10th Cir.1998) thoughts on rea separately to add a few (quoting People Educ., question to the A related Sch. sonableness. Bd. Who Care Rockford here is whether requested amount of fees Dist. No. to be a “sub Cir.1996)). may defendants be said any respect. stantially prevailing party” district denying Defendants’ matter, Supreme the preliminary As a no rationale for its deci- again gave court identify- in than clear Court has been less enough to remand This is reason sion. employed the standards ing origins the give the district court in order to this case attorney’s fees. At first assessing in for its explain to the basis opportunity blush, rights civil Bartlеtt, the environmental F.3d at 519-20. See 38 decision. objectives such policy laws have different clearly prevailed note that Defendants We may have had a different Congress that third causes of Plaintiff’s second and as to attorney’s fees However, of how and when to the “or- view as contrasted action. But in cases. the be assessed such the award of should dinarily” language governing far, has, fees, thus instruсted Supreme Court Defen- plaintiffs fee-shifting to treat the the federal courts only awarded fees may be dants at identically. Dague, 505 U.S. the statutes that either of if the district court finds 2638; unreasonable, 561-62, Pennsylvania “frivolous, 112 S.Ct. were claims Valley Citizens’ Council Delaware plaintiff that the continued groundless, or 435, Hensley, at 461 U.S. inquiry, theories.” answering we note that In the first they a common if “involve claims are related S.Ct. 1933. оn related core of facts or will be based Air, 546, 559-60, Clean 478 U.S. sanctioned alteration the relationship 3088, 92 L.Ed.2d 439 We thus parties. Here, between the may that must look at party status in that mean some or no attorney’s fees at all. light, move to what “award is appro- cases, course, Our require the court to priate” under 42 U.S.C. explain its reasoning on the record for appellate See, purposes review. e.g., Mi Supreme The Court has instructed that States, chael A. Cramer v. United the “most critical factor” in assessing rea Cir.1995). “degree sonableness is the of success ob Farrar, tained.” S.Ct. matter, As a final the statute’s text Eckerhart, (quoting Hensley seems envision may that a defendant be 424, 436, U.S. 76 L.Ed.2d entitled to prevailing party status some (1983)). majority correctly shows circumstances. Court requires success some mаterial altera construing however, has estab- tion in the relationship between plain the high lished a bar on based frivolousness or Here, tiff and the defendant. such a mate See, meritlessness. e.g., Christiansburg rial alteration in relationship is achieved EEOC, Garment Co. v.

through an judicial enforceable decree 54 L.Ed.2d 648 arising from complaint. RCRA, enacting however, Congress poten- tially added a class of eligible parties by “success,” however, Mere enоugh. inserting phrase “substantially prevail- The Supreme Court has instructed that in ing party.” It is far from clear what Con- circumstances, “some plaintiff even a who gress had in mind respect to this formally ‘prevails’ under 1988 should re phrase, and parties appeal to this have Farrar, ceive no at all.” yet to suggest an interpretation of this 113 S.Ct. 566. As Justice language that alters application Su- explained cоncurrence, O’Connor in her al preme Court case law. though victory might technical allow a some may claim court event, any appears here it that the “announce a sensible decision award low plaintiff achieved an “alteration of legal fees or no fees at all.” Id. at 113 status” between so as to be (O’Connor, J., S.Ct. 566 concurring). That eligible for fees under explanation naturаlly follows from the precedent. Thus, while the defendants Court’s in Hensley observation “prevailed” on several Clean Water Act “where the achieved limited claims virtue of achieving a defense success, the district should award verdict, applicable precedent appears only that amount of fees that is reasonable to foreclose an award unless the claims in relation to results Hens obtained.” were, asserted as majority observes, ley, 103 S.Ct. 1933. See either unrelated claim, to the ‍​‌‌‌‌‌‌​​​‌‌‌‌​​‌‌‌‌​‌‌​‌​​​​​​‌​‌​​​‌​‌‌‌​‌‌‌‌​‍RCRA also Kirklin, M. Schwartz & J. Section “frivolous, groundless.” unreasonable or Litigation: Claims, Defenses, and Although the text suggests statute’s Fees 6.6 broader reading of “prevailing party,” the Supreme Court has not presented been

Consequently, a district court retains with a case that expand would eligibility considerable discretion to determine the for fees under a different standard. amount of success achieved and craft an fees commen-

surate with that success. Accordingly, in view,

my the district court must look

degree of light success of the judicially

Case Details

Case Name: Browder v. City of Moab

Court Name: Court of Appeals for the Tenth Circuit

Date Published: Oct 14, 2005

Citation: 427 F.3d 717

Docket Number: 04-4198, 04-4206

Court Abbreviation: 10th Cir.