ELR Citation: ELR 20568
No(s). 89-35230 (9th Cir. Feb 1, 1991)

The court generally upholds a district court's award of attorney fees to parties that obtained an injunction preventing the Environmental Protection Agency (EPA) from banning the pesticide dinoseb. After the district court granted the injunction, which was upheld on appeal, one plaintiff filed a petition for attorney fees under the Equal Access to Justice Act (EAJA). The district court granted attorney fees for the entire action, including the appeal, increased the fees for a cost of living adjustment, and awarded an amount over the statutory ceiling of $75 per hour, based on the specialized environmental litigation experience of plaintiff's counsel. The court first holds that plaintiff food processor association, and not its individual members, is the real party in interest. Although the individual association members received benefits from the merits determination in this case, the members were not individually liable for the association's attorney fees. The court next holds that the government failed to prove special circumstances existed to make an award of fees unjust, or that substantial justification existed to preclude the EAJA's mandatory award of fees to eligible parties. Although the same counsel represented possibly ineligible plaintiffs in the lawsuit, along with the eligible plaintiff association, the government failed to carry its burden of proving the special circumstance of a "free rider" conflict. A free-rider plaintiff is a plaintiff who is ineligible for fees under the EAJA but who ends up paying no fees because the other, eligible plaintiff pays them all through court-awarded fees. Since the government failed to establish the ineligibility of the other plaintiffs at trial, the existence of a free-rider problem has not been established. However, the court holds that the fee award for 46.9 hours of work incurred by plaintiff association's attorney in opposing an intervenor motion to stay the preliminary injunction pending the government's appeal is not recoverable, because the fees were not incurred in opposing government resistance. Since the government did not join the intervenors' motion to stay the injunction, the award of fees for this time was error. The court also holds that the district court erred in awarding attorney fees in excess of the EAJA's limit of $75 per hour. The district court failed to make a finding as to the availability of attorneys in the area with similar skills who would take the case at the statutory rate, and the case must be remanded for such a finding. Finally, the court holds that appellees are entitled to attorney fees for this appeal, since under the EAJA, the prevailing party is automatically entitled to attorney fees for any fee litigation once the district court has made a determination that the government's position lacks substantial justification.

A dissenting judge would deny attorney fees in excess of the statutory rate of $75 because "environmental litigation" is not a practice specialty contemplated as an exception to the rate cap in the EAJA, and the limited availability of suitably qualified trial and appellate counsel is not sufficient to justify exceeding the statutory rate.

[Previous decisions in this litigation are published at 17 ELR 20779 and 18 ELR 20368.]

Counsel for Appellant
Lisa S. Farringer
Office of the Deputy Attorney General
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Appellee
Susan D. Eggum
McEwen, Gisvold, Rankin & Stewart
1600 Standard Plaza, 1100 S.W. Sixth Ave., Portland OR
(503) 226-7321