Center for Biological Diversity v. United States Department of the Interior

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Filed August 14, 2012
No. 07-1247
CENTER FOR BIOLOGICAL DIVERSITY,
PETITIONER
v.
UNITED STATES DEPARTMENT OF THE INTERIOR,
RESPONDENT
AMERICAN PETROLEUM INSTITUTE,
INTERVENOR
W. MICHAEL HANEMANN,
AMICUS CURIAE FOR PETITIONER
STATE OF ALASKA,
AMICUS CURIAE FOR RESPONDENT
CHARLES KOLSTAD; NATIONAL AUDUBON SOCIETY;
NATURAL RESOURCES DEFENSE COUNCIL; OCEAN
CONSERVANCY; OCEANA, THE WILDERNESS SOCIETY,
AMICI CURIAE FOR PETITIONER
Consolidated with 07-1344

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On Petitioners’ Motion for
Recovery of Costs and Attorneys’ Fees
Before: SENTELLE, Chief Judge; ROGERS, Circuit Judge;
and GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Chief Judge SENTELLE.
SENTELLE, Chief Judge: The Native Village of Point Hope,
Alaska, petitions this court for reimbursement of attorneys’ fees
and costs surrounding the case of Center for Biological
Diversity v. Interior, 563 F.3d 466 (D.C. Cir. 2009). The
petition requests reimbursement in the amount $518,566.46 in
fees and $22,954.01 in costs, for a total request of $541,520.47.
The government has filed its opposition to the petition. After
considering the arguments of each side, we will allow
reimbursement in the amount of $192,293.07 in fees and
$8,492.98 in costs, for a total reimbursement of $200,786.05.
Background
A comprehensive background of this case can be found in
our merits opinion, Center for Biological Diversity v. Interior,
563 F.3d at 472-75. Here we will set forth only the facts needed
to dispose of the fee petition before us. In 2007 the U.S.
Department of Interior (Interior) approved a five-year program
for expanding leases for offshore oil and gas development in,
among other areas, the Beaufort, Bering, and Chukchi Seas off
the coast of Alaska. In 2008 petitioner Native Village of Point
Hope, Alaska (NVPH), “a federally recognized tribal
government whose members use the Chukchi Sea coast for
subsistence hunting, fishing, whaling, and gathering, as well as
cultural and religious activities,” id. at 475, along with three
non-profit organizations, filed petitions for review challenging

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the approval of the leasing program by Interior. NVPH in
particular argued that the leasing program violated: (1) the
National Environmental Policy Act (NEPA), 42 U.S.C. §§ 4321-
4370f; (2) Section 18 of the Outer Continental Shelf Lands Act
(OCSLA), 43 U.S.C. § 1344; and (3) Section 20 of OCSLA, 43
U.S.C. § 1346. In our merits opinion we concluded that the
NEPA-based claims set forth by the petitioners were not ripe.
We further concluded that petitioners’ OCSLA Section 20
argument was “wholly without merit.” We found meritorious,
however, petitioners’ argument concerning Section 18 of
OCSLA, concluding that Interior’s interpretation of the relevant
subsection of Section 18 was irrational. We consequently
vacated the leasing program affecting the Alaskan seas at issue
and remanded the program to Interior to reconsider it in light of
our opinion.
Our merits opinion issued on April 17, 2009. For the next
two years, various filings of the parties and by this court took
place: On May 11, 2009, Interior filed a rehearing petition for
clarification and/or modification of the remedy. On May 29,
2009, NVPH filed its opposition to Interior’s rehearing petition.
On July 29, 2009, we stayed the mandate pending a new five-
year program by Interior. On May 17, 2010, Interior issued its
new five-year program. On April 26, 2011, we dismissed as
moot the petitions for rehearing and/or clarification. And on
May 10, 2011, we issued the mandate.
Pursuant to OCSLA’s fee award provision, 43 U.S.C.
§ 1349(a)(5), NVPH now petitions this court for reimbursement
of attorneys’ fees and costs that it claims it incurred in this
matter.

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Discussion
For our discussion, the pertinent section of OCSLA states:
A court, in issuing any final order in any action
brought pursuant to [certain subsections] of this
section, may award costs of litigation, including
reasonable attorney and expert witness fees, to any
party, whenever such court determines such award is
appropriate.
43 U.S.C. § 1349(a)(5). NVPH petitions for reimbursement of
attorneys’ fees and costs in the amount of $541,520.47, incurred
between August 22, 2007, and October 11, 2011. The
government has filed its opposition, requesting that we
significantly reduce the amount requested. Because the
government has divided its opposition into four general
categories, i.e., fees incurred before our April 17, 2009, merits
opinion, fees incurred after our opinion, costs, and fees incurred
in preparing the fee petition at issue, we will organize our
discussion in the same fashion.
Pre-merits decision fees
NVPH requests reimbursement for attorneys’ fees in the
amount of $186,952.32 incurred in this case from August 22,
2007, to April 17, 2009, the date on which we issued our merits
opinion. The government argues that we should substantially
reduce this amount because NVPH was only successful on one
of its three claims. As noted above, NVPH made three claims
during the merits phase, concerning NEPA, Section 20 of
OCSLA, and Section 18 of OCSLA. NVPH was successful only
on its Section 18 claim, and the government argues that NVPH
cannot recover fees for work done on the two unsuccessful
claims because those claims were unrelated to the successful

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claim, i.e., each of the three claims relied on different statutory
provisions, factual premises, and types of relief sought. See
Hensley v. Eckerhart, 461 U.S. 424, 434-35 (1983). We
addressed a similar argument in American Petroleum Institute
v. EPA, 72 F.3d 907, 911 (D.C. Cir. 1996). In that case we
concluded that the petitioners’ five arguments made at the merits
stage did not raise any claims different from the one on which
they prevailed—“the invalidity of the regulation at issue.” Id.
So too here. Although NVPH variously sought to have Interior
complete a revised Environmental Impact Statement, gather
biological baseline information, and formulate a research plan
for filling data gaps, all were arguments for vacating the leasing
program, as we noted in our merits opinion, Center for
Biological Diversity v. Interior, 563 F.3d at 471. We conclude
that NVPH’s two unsuccessful claims are not excludable
because of unrelatedness.
Although we conclude that NVPH’s two unsuccessful
claims are not excludable because of unrelatedness, when
examining these claims we must nevertheless keep in mind
OCSLA’s provision that any attorneys’ fees award be
“reasonable” and “appropriate.” 43 U.S.C. § 1349(a)(5). In our
merits opinion, we reviewed NVPH’s OCSLA Section 20
argument that Interior violated that section by failing to
complete certain research before approving the leasing program.
We concluded that this argument was “wholly without merit.”
Center for Biological Diversity v. Interior, 563 F.3d at 486.
Upon such a conclusion we cannot deem fees incurred in
advancing NVPH’s OCSLA Section 20 argument reasonable or
appropriate. Consequently, the attorneys’ fees incurred in
putting forth this argument are not reimbursable. We will
therefore first deduct the $19,560.00 that NVPH has requested
specifically for its Section 20 claim. Furthermore, after making
this deduction we will make a 1/3 deduction of NVPH’s fee
request for “general litigation” to reflect work done on this

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meritless argument. See Kennecott Corp. v. EPA, 804 F.2d 763,
766 (D.C. Cir. 1986). We note that the 1/3 reduction
corresponds roughly to the pages devoted to the Section 20
claim in NVPH’s opening and reply merits briefs. (Since the
billing records make it practical for us to do so, we will first
subtract those fees billed specifically for the meritorious NEPA
claim, make the 1/3 deduction, and then add back the specific
NEPA fees.) To summarize thus far:
Pre-merits fee requested: $186,952.32
Specific deduction for OCSLA
Section 20 argument: 19,560.00
Remainder: $167,392.32
Deduction for NEPA claim: 23,660.82
Remainder: $143,731.50
General deduction of 1/3 for OCSLA Section 20
argument: $143,731.50 minus $47,910.50 equals
$95,821.00.
Addition for NEPA claim: 23,660.82
The total allowed for reimbursement of pre-merits-decision
fees is therefore $119,481.82.
Post-merits decision fees
Excluding costs incurred in this case and fees to prepare its
attorneys’ fees petition, the remainder of NVPH’s request for
reimbursement of fees, according to NVPH, is for “post-opinion
remedy, remand and mandate.” More specifically, NVPH seeks
reimbursement for a considerable amount of attorney work
performed for the approximately two-year period between April
2009, when our decision issued, and May 2011, when we issued

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the mandate. NVPH states that its counsel spent this time period
“evaluating, negotiating and briefing remedy issues, as well as
ensuring that the final decision would be in line with the clients’
goals.” Furthermore, according to NVPH, its counsel
“embarked on an intense period of research, and internal and
external discussions (i.e., between the parties),” and the status of
the case during this time “necessitated close coordination
between clients and counsel.” In support of its contention that
such fees are reimbursable, NVPH cites Environmental Defense
Fund, Inc. v. EPA, 672 F.2d 42 (D.C. Cir. 1982), in which we
found post-decision fees compensable where: the parties
participated in extensive post-decision deliberations and
negotiations in order to seek a stay of the mandate; a stay was
issued and jurisdiction maintained; the post-decision events
were intimately related to the litigation in chief; and the
continued participation of the fee petitioner in the post-decision
deliberations was essential. Id. at 57.
The government, in opposing NVPH’s request for post-
decision fees, first notes that NVPH billed over 900 hours after
this court’s decision, compared to approximately 600 hours
before. This post-decision fee request is so excessive, argues the
government, that it should be denied in full. The government
further argues that, in any event, significant portions of NVPH’s
post-decision fee request should be denied because: 1) NVPH’s
post-decision efforts were not essential to the resolution of the
case, in contrast to the determination made by the court in
Environmental Defense Fund; or 2) the fees do not qualify as
“costs of litigation” as required by OCSLA.
Ordinarily, litigation at the appellate level will end when the
court issues its decision. But we find too harsh the
government’s argument that NVPH’s post-decision fee request
should be denied in full. As counsel for NVPH explains, most
of this post-decision work was necessary in order to realize

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NVPH’s litigation goals, and its request for reimbursement of
the fees incurred is not unreasonable. We do agree with the
government, however, that many, if not most, of the post-
decision fees do not qualify under OCSLA’s “costs of litigation”
requirement. See 43 U.S.C. § 1349(a)(5). In Ruckelshaus v.
Sierra Club, 463 U.S. 680, 685 (1983), the Supreme Court
explained that “[e]xcept to the extent it has waived its immunity,
the Government is immune from claims for attorney’s fees . . . .
Waivers of immunity must be ‘construed strictly in favor of the
sovereign’ . . . and not ‘enlarge[d] . . . beyond what the language
requires.’” Id. (citations omitted). Adhering to this reminder,
in Michigan v. EPA, 254 F.3d 1087, 1091 (D.C. Cir. 2001), we
concluded that fees incurred for filing an administrative petition
were to be excluded. So too here. NVPH states that a
significant amount of its attorneys’ post-decision work was
spent on “evaluating, negotiating and briefing remedy issues, as
well as ensuring that the final decision would be in line with
[NVPH’s] goals.” The government responds that, in contrast to
Environmental Defense Fund, relied upon by NVPH, NVPH’s
attorneys never met with Interior’s, there were no negotiations
or joint planning, and consequently NVPH’s post-decision
efforts were not essential to the outcome. We agree. A review
of the post-decision billing entries shows that this work does
not, for the most part, qualify as “costs of litigation.”
Consequently, except for a small number of entries, we conclude
that the post-decision work done by NVPH’s attorneys is not
compensable under OCSLA’s fee award provision.
We nevertheless conclude that a small portion of the post-
decision fees requested is reimbursable. First, after our merits
decision issued, Interior filed a rehearing petition for
clarification and/or modification of the remedy. NVPH filed an
opposition to this petition, and the government does not dispute
that NVPH is entitled to at least some of the time billed for
opposing Interior’s petition. We will consequently allow for

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reimbursement a portion of those fees incurred between May 11,
2009, when Interior filed its petition, and May 29, 2009, when
NVPH filed its opposition. The total amount claimed by NVPH
for this time period is $52,830.00. The government argues that
the fees claimed for this period are unreasonable, and we agree
that this amount is unreasonable for responding to a petition
seeking only clarification of this court’s remedy. We will
therefore reduce by half the amount requested, for a total of
$26,415.00.
We also hold reimbursable those post-decision fees incurred
for review of court documents and follow-up client explanation:
1) from April 18 to April 21, 2009, after our merits opinion
issued; 2) from July 28 to July 30, 2009, after our order issued
on July 28, 2009, staying the mandate; and 3) from April 26,
2011, to May 19, 2011, when we dismissed as moot the petitions
for rehearing and/or clarification and issued the mandate. See
Michigan v. EPA, 254 F.3d at 1093 (fees incurred keeping client
informed of case status reimbursable). To summarize, we will
allow the following post-decision fees:
Fees incurred from May 11 to May 29, 2009: $26,415.00
Fees incurred from April 18 to April 21, 2009: 9,651.50
Fees incurred from July 28 to July 30, 2009: 4,045.50
Fees incurred from April 26 to May 19, 2011: 997.50
Total: $41,109.50
Consequently, we will allow a total of $41,109.50 for post-
decision fees.
Fees incurred for fee petition
NVPH requests reimbursement for preparation of its fee
petition in the amount of $63,403.50, incurred for almost three
weeks (109 hours) of attorney work and more than three and a

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half weeks (146 hours) of legal intern work. This sums to more
than six weeks of work spent on the fee petition. The
government argues that this amount is unreasonable compared
to other fee cases we have decided, and we agree. See Fabi
Const. Co. v. Sec’y of Labor, 541 F.3d 407, 414 (D.C. Cir.
2008) (nearly six 40-hour weeks of attorney time spent on fee
application excessive); Am. Wrecking Corp. v. Sec’y of Labor,
364 F.3d 321, 331 (D.C. Cir. 2004) (three 40-hour weeks spent
on attorneys’ fees application excessive). Consequently, as we
did in Fabi, we will reduce the requested amount by half,
resulting in an allowed amount of $31,701.75.
* * * * * * *
To summarize the total amount of fees allowed:
Pre-merits decision fees: $119,481.82
Post-merits decision fees: 41,109.50
Fee petition fees: 31,701.75
Total: $192,293.07
* * * * * * *
Costs
NVPH requests reimbursement for costs in the amount of
$22,954.01. The government argues that these costs appear
excessive as many of the entries do not appear to be
compensable as “costs of litigation.” We agree that some of the
costs fit this category; others, however, are associated with the
attorneys’ fees that we are allowing. As it is difficult to gather
from the list of costs which in particular should be allowed, we
will divide the amount of attorneys’ fees we are allowing by the
amount requested, and use that fraction to determine the costs to
be allowed; i.e., $192,293.07 divided by $518,566.46 equals .37.

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Consequently, we will allow costs in the amount of .37 times the
amount requested, $22,954.01, for reimbursable costs in the
amount of $8,492.98.
Conclusion
For the reasons stated above, we allow attorneys’ fees in the
amount of $192,293.07 and costs in the amount of $8,492.98, for
a total reimbursement of $200,786.05.

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