Federal Court of Appeals Find That Some Junior Attorney Work Was Not Distinctive and That Plaintiffs Needed to Show Attorneys Were Not Available to Work at Lower Hourly Rates.
Under the Equal Access to Justice Act (28 U.S.C. § 2412), prevailing parties in cases brought by or against the United States are allowed to recovery attorney’s fees unless the Government’s position was substantially justified or special circumstances make such an award unjust. See 28 U.S.C. § 2412(d)(1)(A). EAJA allows for the award of attorney’s fees "based upon the prevailing market rates for the kind and quality of the services furnished," capped at $125 per hour, "unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C. § 2412(d)(1)(D)(2)(A). The Ninth Circuit, in Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991), set out a three-pronged test for awarding enhanced attorney’s fees: (1) the attorney must possess distinctive knowledge and skills developed through a specialty practice; (2) the distinctive skills were needed in the litigation at issue; and (3) the distinctive skills must not be available elsewhere at the lower $125 per hour statutory rate. All of these principles were at play in the next case, where a district court award of attorney’s fees against the Navy was affirmed in part as well as vacated and remanded in part.
In Natural Resources Defense Council, Inc.(NRDC) v. Winter, Case No. 07-55294 (9th Cir. Sept. 16, 2008), several environmental groups obtained a temporary restraining order against the Navy enjoining the use of mid-frequency active sonar during it Rim of the Pacific 2006 training exercise given the disruption to some marine mammals in the area. After the TRO, the parties reached a settlement by which the Navy implemented or modified several mitigation measures that it had previously rejected. Environmental group—represented by two senior and two junior in-house attorneys from NRDC as well as one senior litigation partner and three junior associates at Irell & Manella LLP (an alma mater for contributors Marc Alexander and Mike Hensley)—sought an award of attorney’s fees under EAJA. The district court granted the motion, awarding frees totaling $437,584.24 after applying enhanced rates above the statutory $125 cap based on finding counsel brought distinctive skills unavailable at the statutory rate. Navy appealed the amount of the fee award on various grounds.
The Ninth Circuit affirmed enhanced fees for the NRDC in-house counsel and Irell senior litigation partner. However, they reversed the enhanced fee award with respect to the Irell junior associates working on the case. Because these junior associates had no environmental expertise, the Court of Appeals refused to find that "distinctive knowledge and skill" extended to encompass the expertise that the junior associates learned from the pending or companion cases. (Slip Opn., at pp. 12958-12959.) In a footnote, the appellate panel observed that other circuits read the "special factor" test even more narrowly (meaning the attorney must have a specialty outside the field of American law), such that recognizing a case specific acquisition of expertise "would further widen this split." (Id. at n. 2.) The Ninth Circuit also rejected exigency or expedited needs as bases to find a "special factor" for enhancement purposes. (Accord, Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 969 (D.C. Cir. 2004).)
Independently, the Court of Appeals remanded because no evidence was presented by plaintiffs to demonstrate that other attorneys were not available to prosecute the case at the statutory capped hourly rates. Plaintiffs were allowed an added opportunity to demonstrate they satisfied the third prong of the Love test discussed in the first paragraph of our post.
However, the Ninth Circuit did not buy Navy’s argument that the claimed hours needed to be reduced due to plaintiffs’ limited success. Even limited success like that presented in this case—an "excellent" TRO resulting in changed conduct by the Navy—sufficed to justify an award of fees under EAJA. (See Hensley v. Eckerhart, 461 U.S. 424, 440 (1983) [42 U.S.C. § 1988]; Sorenson v. Mink, 239 F.3d 1140, 1145 n. 2 (9th Cir. 2001) [Hensley applied to EAJA fee awards].)
Last, Navy challenged the award of attorney’s fees for work done on appeal of the TRO, arguing that the request should have been filed with the Ninth Circuit rather than the district court. Absent a statutory provision to the contrary, Circuit Rule 39-1.6 would have sustained the correctness of the Navy’s argument, because case law has held that analogous section 1988 appellate fees must be sought from the Ninth Circuit. (See Cummings v. Connell, 402 F.3d 936, 947-948 (9th Cir. 2005).) However, EAJA had a contrary statutory provision—28 U.S.C. § 2412(d)(1)(A)—which allows the district court to determine fee awards at all levels of litigation, distinguishing it from section 1988.