Court Slashes Tribes’ ‘Excessive’ Fee Request

     (CN) – Calling their request “excessive” and vague, the D.C. Circuit awarded a group of Native American tribes less than a third of the nearly $370,000 in attorneys’ fees they sought as intervenors in a Clean Air Act lawsuit.
     The tribes requested more than $369,000 in attorneys’ fees and costs, including compensation for 1,181 hours of legal work, but the D.C. Circuit reduced the award to $111,800 for 356 hours of work and uncontested costs.
     The tribes had intervened in a lawsuit challenging the Bush administration’s relaxed regulations for controlling mercury admissions from power plants.
     After the tribal intervenors and environmental groups won in 2008, the tribes asked to be reimbursed for their legal fees and costs under the Clean Air Act.
     In 2001 a three-judge panel ruled that the tribes were entitled to reimbursement.
     However, the EPA insisted that the tribes’ request was dizzying for an unopposed motion and said their legal work should have been done by associates billed at lower rates.
     The tribes’ law firm, Kanji & Katzen, had allegedly used a partner for the motion because its associates were “extremely busy.”
     “This justification is entirely unacceptable,” the D.C. Circuit ruled.
     The court said the tribes “could have saved a great deal of time by first asking EPA whether it would oppose the motion.”
     “[W]e suspect that had the firm been charging a private client for these hours, it would have billed the partner time at the hourly rate of the ‘extremely busy’ associates,” the ruling states. “The taxpayers are surely entitled to the same courtesy.”
     The panel also sided with the EPA in its finding that billing for about 14 weeks of attorney time to prepare opening and reply briefs was “patently excessive.”
     The tribes “played a ‘narrow’ role in the litigation, focusing only on whether EPA’s regulations abridged tribal fishing rights,” the per-curiam ruling states. “Such a focused contribution, though important, should have taken substantially less time.”
     “As is the case with many of movants’ billing records, the records regarding these activities lack the specificity needed not only to justify the full amount sought for these simple tasks, but also to assure us that no duplication occurred between movants’ efforts and those of the petitioners.”
     Judge Janice Brown, who dissented in the 2011 ruling, said she would have awarded the tribes nothing.
     “Since I believe that no matter how carefully we parse the separate parts of the intervenors’ request, anything above zero is excessive, I hope the en banc court will revisit this question in the near future,” she wrote.
     “Meanwhile, under compulsion of our earlier case, I reluctantly concur.”

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