United States District Court, S.D. West Virginia, Charleston Division
MEMORANDUM OPINION AND ORDER
R. GOODWIN UNITED STATES DISTRICT JUDGE.
before the court is the plaintiffs' Motion for an Award
of Attorneys' Fees and Expenses [ECF No. 32]. For the
reasons that follow, the Motion is GRANTED.
plaintiffs brought this case pursuant to the citizen suit
section of the Clean Water Act (“CWA”). The
plaintiffs alleged that the defendant was in violation of
West Virginia and National Pollution Discharge Elimination
System Permits for seven mining sites controlled by the West
Virginia Department of Environmental Protection's Special
Reclamation Program, two of which are in this District. On
April 25, 2018, this court approved and entered a Consent
Decree [ECF No. 31]. The remaining issue before the court is
whether the plaintiffs are entitled to reasonable
attorneys' fees for obtaining the Consent Decree.
1365(d) of the CWA provides that a court “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). “The
touchstone of the prevailing party inquiry must be the
material alteration of the legal relationship of the parties
in a manner which Congress sought to promote in the fee
statute.” Tex. State Teachers Ass'n v. Garland
Indep. Sch. Dist., 489 U.S. 782, 792-93 (1989).
judgments on the merits and court-ordered consent decrees
create the ‘material alteration of the legal
relationship of the parties' necessary to permit an award
of attorneys' fees.” Buckhannon Bd. & Care
Home, Inc. v. W.Va. Dep't of Health & Human
Res., 532 U.S. 598, 604 (2001). As the Fourth Circuit
has observed, “a consent decree approved and entered by
a trial court is sufficient to make the party that obtains
relief a ‘prevailing party' under the fee-shifting
statutes, because such a decree ‘is entered as an
[approved] order of the court . . . and is subject to the
oversight attendant to the court's authority to enforce
its orders.” Goldstein v. Moatz, 445 F.3d 747,
751 (4th Cir. 2006) (quoting Smyth ex rel. Smyth v.
Rivero, 282 F.3d 268, 281 (4th Cir. 2002)).
simply, because a judicially approved consent decree subject
to the oversight of this court was issued, the plaintiffs are
a prevailing party. Nevertheless, the defendant argues that
the Consent Decree did not result in the defendant modifying
its behavior toward the plaintiffs because “it merely
agreed to . . . continue what it was already doing and what
it planned to do going forward and . . . report its
compliance progress.” Resp. 7 [ECF No. 35]. For
support, the defendant sites multiple cases that it argues
suggest that “enshrin[ing] the status quo” is not
enough to create a material alteration in a legal
relationship between the parties to permit an award of
attorneys' fees. Resp. 7 [ECF No. 35]. Importantly,
however, all of the cited cases were missing one thing: a
consent decree. See McQueary v. Conway, 614 F.3d 591
(6th Cir. 2010) (no consent decree); Walker v. Calumet
City, 565 F.3d 1031, 1034 (7th Cir. 2009) (“[The
plaintiff] did not obtain a consent decree in this case;
hence, the second Buckhannon example does not
apply.”); Sierra Club v. City of Little Rock,
351 F.3d 840 (8th Cir. 2003) (no consent decree).
defendant also argues that the plaintiffs are attempting to
revive the “catalyst theory, ” which the
defendant argues has been rejected by the Supreme Court.
While it is true that the Court rejected the catalyst theory
under certain circumstances, the Court was doing so
specifically because the catalyst theory is unlike an
“enforceable judgment on the merits and
court-ordered consent decrees.”
Buckhannon, 532 U.S. at 604-05 (emphasis added)
(“[T]he ‘catalyst theory' falls on the other
side of the line from these examples. It allows an award
where there is not judicially sanctioned change in the legal
relationship of the parties.”). Thus, because the
consent decree is a material alteration of the legal
relationship of the parties necessary to permit an award of
attorneys' fees, all that is left to consider is whether
the amount requested by the plaintiff's is reasonable.
the CWA, the “lodestar” method is used to
calculate the amount of attorneys' fees. See,
e.g., City of Burlington v. Dague, 505 U.S.
557, 562 (1992).
First, ‘the court must determine the lodestar figure by
multiplying the number of reasonable hours expended times a
reasonable rate'. Second, ‘the court must subtract
fees for hours spent on unsuccessful claims unrelated to
successful ones. [Third], the court should award some
percentage of the remaining amount, depending on the degree
of success enjoyed by the plaintiff.'
Jones v. Southpeak Interactive Corp. of Del., 777
F.3d 658, 675 (4th Cir. 2015)(citations omitted). In deciding
what constitutes a “reasonable” number of hours
and rate, the Fourth Circuit has instructed that a district