Metropolitan News-Enterprise


Wednesday, September 17, 2008


Page 1


Ninth Circuit Overturns $400,000 Fee Award in Sonar Case




The Ninth U.S. Circuit Court of Appeals yesterday ordered a district judge to reconsider an award of more than $400,000 in fees to attorneys who successfully challenged the Navy’s use of sonar in  exercises off the islands of Hawaii. 

Judge Milan D. Smith Jr., writing for the panel, said U.S. District Judge Florence-Marie Cooper of the Central District of Los Angeles acted within her discretion in concluding that the lawyers—with the Natural Resources Defense Council and the local firm of Irell and Manella—were entitled to fees under the Equal Access to Justice Act.

But the award was excessive, the appellate jurist explained, because some of the junior attorneys who worked on the case lacked sufficient expertise to justify an exception to the EAJA’s general cap of $125 per hour.

Injury Alleged

The suit was brought in June 2006. The plaintiffs alleged that the Navy’s Rim of the Pacific training exercise, known as RIMPAC 2006, would injure marine mammals by using midfrequency active sonar, which bounces a loud noise off the hulls of submarines, thus detecting their presence.

Citing evidence of potential harms to marine mammals resulting from the noise, Cooper ruled that the Navy had failed to conduct sufficient environmental reviews to justify use of the sonar, as required by the National Environmental Policy Act. The judge granted a temporary restraining order, which led to a settlement four days later in which the Navy agreed to implement certain mitigation measures.

The RIMPAC suit was separate from a suit, which was heard by Cooper during the same time frame and is now pending before the U.S. Supreme Court, challenging the use of sonar in exercises off the California coast.

In the RIMPAC case, the plaintiffs’ legal team, headed by Joel Reynolds of the NRDC and Richard Kendall of Irell, moved for fees under the EAJA. The act permits an award of fees on behalf of a private party that prevails in litigation with the government if the government’s position was not substantially justified.

Fees are limited to $125 hourly, however, unless inflation or a “special factor,” such as limited availability of qualified attorneys with some distinctive knowledge or specialized skill, justifies a higher award.

Experience Questioned

On appeal, the government did not contest Cooper’s finding that its opposition to the TRO was not substantially justified. It argued, however, that none of the Irell lawyers had sufficient environmental law experience to justify a special factor exception to the cap, and that exceptions for the NRDC lawyers should be limited to two senior members of the four-lawyer team.

Smith, writing for the Ninth Circuit, rejected Cooper’s reasoning that the work of all of the lawyers, in litigating both the RIMPAC case and the California coastal case—and, for some of them, other sonar cases—established that they had special expertise. He disagreed with the Navy, in part, however, concluding that Kendall and all of the NRDC attorneys had the requisite knowledge and skill to support a higher rate.

Because the other Irell attorneys had no environmental law experience other than what they gained in the two sonar cases, they cannot be regarded as specialists, Smith said, nor can the claimed “exigent circumstances”—the need to work long hours over a 10-day period encompassing the July 4 weekend, while facing a battery of 17 government lawyers on the other side—be treated as a special factor.

“That junior counsel from Irell were able to work so quickly and ably speaks to their general litigation skills and competence,” the judge wrote. “It is not, however, sufficient to qualify for an enhanced fee award under the EAJA.”

In Kendall’s case, however, Smith said the enhanced fee was reasonable because the attorney, besides having broad litigation experience over a career of more than 25 years and having simultaneously litigated the RIMPAC and California cases, handled a similar case in 1994.

The judge went on to say that Cooper did not abuse her discretion in enhancing the fees for the two junior NRDC lawyers.

“The declarations and resumes submitted by NRDC adequately establish that all the NRDC attorneys, including the two junior attorneys, had developed extensive knowledge in environmental law, and specifically in the effects of sonar on marine mammals,” Smith wrote. “The two junior NRDC attorneys have co-authored journal articles and spoken at several national and international fora on the impact of noise on marine mammals, as well as served on a variety of committees addressing this distinct issue.”

The opinion was joined by Senior Judge William C. Canby Jr. and Judge Jay S. Bybee.

The case is Natural Resources Defense Council v. Winter, 07-5529.


Copyright 2008, Metropolitan News Company