United States District Court, D. Maine
MAINE PEOPLE'S ALLIANCE and NATURAL RESOURCES DEFENSE COUNCIL, INC., Plaintiffs,
HOLTRACHEM MANUFACTURING COMPANY, LLC, and MALLINCKRODT US, LLC, Defendants.
ORDER ON MOTION FOR ATTORNEY'S FEES AND
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
sixteen years of litigation in this major environmental
action, the Plaintiffs, having achieved success on numerous
significant issues, seek an award of attorney's fees and
costs under 42 U.S.C. § 6972. The Court concludes that
it has issued final orders and that the Plaintiffs are
prevailing parties within the meaning of § 6972(e). The
Court applies Maine, not New York, attorney billing rates to
the attorney's fee application and it sets those rates.
Finally, it concludes that, given the Plaintiffs'
voluntary reductions, the stated hours worked are reasonable.
April 10, 2000, the Maine People's Alliance and the
Natural Resources Defense Council, Inc., (Plaintiffs) filed a
citizen suit pursuant to 42 U.S.C. § 6972(a)(1)(B) of
the Resource Conservation and Recovery Act (RCRA) against
Holtrachem Manufacturing Company, LLC, and Mallinckrodt, Inc.
(Mallinckrodt), seeking a court-ordered remediation plan for
tons of mercury that the Defendants discharged into the
Penobscot River in Maine during their period of ownership of
a chlor-alkali plant located in Orrington, Maine.
Compl. (ECF No. 1). The Plaintiffs' lawsuit
presented a complex array of legal and scientific issues. The
case has been thoroughly litigated by exceptionally able
counsel for the Plaintiffs and for
Mallinckrodt. On December 15, 2015, the Plaintiffs filed
a motion for award of attorney's fees and costs for $6,
606, 211.95, supported by hundreds of pages of documentation.
Pls.' Mot. for Att'y's Fees and Costs
(ECF No. 842) (Pl.'s Mot.). On January 25, 2016,
Mallinckrodt responded, opposing the motion. Mallinckrodt
U.S. LLC's Opp'n to Pls.' Mot. for
Att'y's Fees and Costs (ECF No. 847)
(Def.'s Opp'n). On February 17, 2016, the
Plaintiffs filed a reply. Pls.' Reply Mem. in Support
of Mot. for Att'y's Fees and Costs (ECF No. 858)
THE PARTIES' POSITIONS
The Plaintiffs' Motion
their motion, the Plaintiffs argue that they should be
considered the prevailing parties under 42 U.S.C. §
6972(e) and are therefore entitled to an attorney's fee
award. Id. at 10-12. They also contend that the
Court's orders of September 2, 2015, and October 16,
2015, are final orders for purposes of a RCRA fee award.
Id. at 13-14. If not, they say that the Court should
award an interim fee. Id. at 15-17. They also assert
that a fee award would be consistent with the purposes of
RCRA. Id. at 17-19. Lastly, they support the
contention that their requested attorney's fee award is
reasonable based on the number of billed hours, the hourly
rates, and the amount of litigation expense, including expert
witness fees. Id. at 19- 32.
objects. Def.'s Opp'n at 1-26. Noting that
Judge Carter had earlier denied an attorney's fee request
as premature absent a final order, Mallinckrodt argues that
the Plaintiffs' motion continues to be premature because
in its view, the statutory requirements for a fee award have
not been met. Id. at 6-10. Furthermore, Mallinckrodt
contends that the Plaintiffs have not prevailed as yet in
this litigation. Id. at 11-12. Mallinckrodt urges
the Court not to issue an interim attorney's fee award
because it would be, in its view, inconsistent with the plain
language of § 6972(e) and Judge Carter's prior
order. Id. at 13-15. Attacking the Plaintiffs'
attorney's hourly rates as a “New York rate,
” Mallinckrodt argues that the Plaintiffs should be
held to Maine, not New York rates. Id. at 15-21.
Finally, Mallinckrodt disputes the reasonableness of the
hours and expenses, and says that if the Court is inclined to
issue an award, it should hold an evidentiary hearing.
Id. at 21-25.
reply, the Plaintiffs reassert that they are prevailing
parties and cite additional supportive caselaw, that the
Court's Orders are final for purposes of a fee award,
that the Court could in the alternative award interim fees,
that they are entitled to out-of-forum rates, and that
reasonable Maine rates are higher than Mallinckrodt suggests.
Pls.' Reply at 6-16. They also defend their fees
and costs as reasonable and say that an evidentiary hearing
is unnecessary. Id. at 16-19.
The RCRA Fee Award Statute: Interim Awards and
Prevailing Parties Section 6972(e)
The court, in issuing any final order in any action brought
pursuant to this section or section 6976 of this title, may
award costs of litigation (including reasonable attorney and
expert witness fees) to the prevailing or substantially
prevailing party, whenever the court determines such an award
first question under this statute is whether it authorizes an
attorney's fee award where, as here, the litigation is
ongoing. The Court concludes that § 6972(e) authorizes
an award of attorney's fees and costs in the
circumstances of this case.
Bradley v. School Board of City of Richmond, 416
U.S. 696 (1974), the United States Supreme Court interpreted
a similar, though not identical, attorney's fee provision
under the Civil Rights Act as authorizing an attorney's
fee award even though the litigation was not
over. Id. at 722-23. The
Bradley Court wrote that “many final orders
may issue in the course of the litigation” and
“[t]o delay a fee award until the entire litigation is
concluded would work substantial hardship on plaintiffs and
their counsel, and discourage the institution of actions
despite the clear congressional intent to the contrary. . .
.” Id. at 723.
conclusion is buttressed by Rogers v. Okin, 821 F.2d
22 (1st Cir. 1987), a First Circuit case interpreting the
fee-shifting provision of 42 U.S.C. § 1988. In
Rogers, the First Circuit quoted the Senate Report