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ESAblawg is an educational effort by Keith W. Rizzardi. Correspondence with this site does not create a lawyer-client relationship. Photos or links may be copyrighted (but used with permission, or as fair use). ESA blawg is published with a Creative Commons License.

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florida gators... never threatened!

If you ain't a Gator, you should be! Alligators (and endangered crocs) are important indicator species atop their food chains, with sensitivity to pollution and pesticides akin to humans. See ESA blawg. Gator blood could be our pharmaceutical future, too. See ESA musing.

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Follow the truth.

"This institution will be based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it." -- Thomas Jefferson to William Roscoe, December 27, 1820.

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Thanks, Kevin.

KEVIN S. PETTITT helped found this blawg. A D.C.-based IT consultant specializing in Lotus Notes & Domino, he also maintains Lotus Guru blog.

« Court stops California turtle advocacy group's effort to re-litigate State Department certification process, but Florida group can fight on. | Main| D.D.C. denies preliminary injunction in tax credit case, but 9th Circuit raises serious questions »

Another attorney's fees case begs an important question: does the fee-shifting process add anything?

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Friends of Animals v. Salazar, Civil Action No. 09-707, 696 F.Supp.2d 16 (D.D.C. Mar. 16, 2010)(Rosemary M. Collyer, District Judge).

BACKGROUND: On April 16, 2009, the non-profit animal advocacy group Friends of Animals filed a Complaint against Ken Salazar pursuant to the Endangered Species Act (“ESA”), 16 U.S.C. § 1533 et seq., seeking declaratory and injunctive relief. On November 20, 2009, this Court issued a Memorandum Opinion finding that Plaintiff's claim that Defendants had failed to make a 90-day finding on its endangered-species petition, as required by the ESA, was moot and its claim that Defendants had failed to meet the 12-month deadline provided by the ESA had to be dismissed due to Plaintiff's failure to provide Defendants with proper notice, as required by statute. The Court also found, however, that the Plaintiff's lawsuit was the catalyst prompting Defendants to ultimately issue a 90-day finding as required and, therefore, Plaintiff may be entitled to recover attorneys' fees and costs. Plaintiff's motion for attorneys' fees and costs is now before the Court.

EXCERPT: Defendants also argue that Plaintiff should not recover at all for work spent on the motion to dismiss because it did not prevail on that motion.  The D.C. Circuit has noted that “where a plaintiff presents in one lawsuit ‘distinctively different claims for relief that are based on different facts and legal theories,’ the court cannot allow a plaintiff to recover fees on the unsuccessful claims.” Sierra Club v. EPA, 769 F.2d 796, 801 (D.C.Cir.1985).  Rather, the Court must address each of the issues presented and determine whether the claims on which Plaintiffs prevailed were closely related to the ones on which they did not. See id.; Am. Lands Alliance v. Norton, 525 F.Supp.2d 135, 146 (D.D.C.2007). “The mere fact that all the issues in a case stem ‘from the same set of regulations and the same administrative record’ does not mean that the issues are related enough for a partially successful plaintiff to be awarded attorney's fees for work performed on both successful and unsuccessful claims.” Am. Lands Alliance, 525 F.Supp.2d at 146.  Plaintiff's claim regarding Defendants' failure to issue a 12-month finding is distinct from its claim regarding a 90-day finding and, in fact, the 12-month claim was not even properly part of this lawsuit. Plaintiff therefore may recover fees for work expended on the notice letter and Complaint to the extent that work was related to its 90-day finding claim, but not for work related to its 12-month finding claim.   Additionally, “hours reasonably expended on [a motion for fees] are compensable,” Sierra Club, 769 F.2d at 811, so Plaintiff may recover those fees as well. The Court agrees that Plaintiff cannot recover for work spent on the motion to dismiss; Plaintiff did not prevail on that motion and the Court did not have jurisdiction over any of Plaintiff's substantive claims at that point.

KEITHINKING: With all of our nation's difficult budgetary issues, and our massive debt, the time has come to rethink whether the federal government should be paying attorney's fees in these types of cases.  The quaint notion of the "citizen attorney general" was obliterated years ago, and replaced by the well-funded, focused, and capable litigation boutiques that advocate passionately for their causes.  These groups -- think Center for Biological Diversity, and Pacific Legal Foundation -- certainly do not need attorney's fees to incentivize their lawsuits.

In this case, the attorneys for Friends of Animals received $13,124 in fees and costs, with rates calculated at a substantial $410 per hour.  (The taxpayer paid fees for the litigation over the fees, too, a policy that creates a disincentive for settlements.)  But Friends of Animals is a well-established international environmental advocacy group existing since 1957, with $3 million in fundraising income, and a fund balance of $4.7 million, according to the 2008 financial report.  So, was this litigation for payment of $13,124 of taxpayer dollars really necessary?  At a minimum, Congress should consider reducing its attorneys fees exposure in Endangered Species Act litigation by re-asserting its sovereign immunity, and insisting upon a lower and absolute maximum rate (such as the Equal Access to Justice Act's $125 per hour).  Disputes over attorney's fees merely add additional and avoidable burdens to the already overburdened judiciary (and don't forget, the Justice Department and their clients, too.)  For more information about the fee shifting statutes, visit the dated but useful 1994 publication, Awarding Attorneys’ Fees and Managing Fee Litigation, by Alan Hirsch and Diane Sheehey, from the Federal Judicial Center.