United States District Court, S.D. West Virginia, Charleston Division
OHIO VALLEY ENVIRONMENTAL COALITION, WEST VIRGINIA HIGHLANDS CONSERVANCY and SIERRA CLUB, Plaintiffs,
FOLA COAL COMPANY, LLC, Defendant.
MEMORANDUM OPINION AND ORDER
C. CHAMBERS, CHIEF JUDGE.
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.
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.
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). 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 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).
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
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 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.
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.
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, 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).
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.
183-1, 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
calculations to reduce their time and costs. See Lovett
Aff., ECF No. 183-2, at 3; Becher Aff., ECF No.
183-3, at 6.
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.
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
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. ...