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Inc. v. Holtrachem Manufacturing Co., LLC

United States District Court, D. Maine

September 30, 2016




         After 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.

         I. BACKGROUND

         On 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.[1] 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) (Pls.' Reply).


         A. The Plaintiffs' Motion

         In 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.[2] 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.

         B. Mallinckrodt's Opposition

         Mallinckrodt 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.

         C. Plaintiffs' Reply

         In 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.[3] Id. at 16-19.


         A. The RCRA Fee Award Statute: Interim Awards and Prevailing Parties Section 6972(e) provides:

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 is appropriate.

         The 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.

         In 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.[4] 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.

         This 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 ...

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