United States District Court, W.D. Virginia, Big Stone Gap Division
D. Morris, Jr., Morris Law Office, P.C., Charlottesville,
Virginia, and Isak Howell, Roanoke, Virginia, for Plaintiffs
A. Mountcastle, Acting United States Attorney and Sarah
Bugbee Winn, Assistant United States Attorney, Roanoke,
Virginia, and John Austin, Field Solicitor and Leta Hollon,
Attorney-Advisor, U.S. Department of the Interior, Office of
the Solicitor, Knoxville, Tennessee, for Defendant.
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE
environmental case, I previously entered summary judgment in
favor of the plaintiffs, finding that a decision by the
Secretary of the Interior (“Secretary”) denying a
federal inspection of selenium levels at a surface coal
mine's outfall was arbitrary and capricious. S.
Appalachian Mountain Stewards v. Zinke, No. 2:16CV00026,
2017 WL 4171391, at *1 (W.D. Va. Sept. 20, 2017). I remanded
the case to the Secretary for the purpose of conducting a
federal inspection of selenium levels at Red River Coal
Company's Greater Wise No. 1 Mine, Outfall 001.
Id. at *7.
that decision, the plaintiffs have moved for an award of
attorneys' fees and costs. In accordance with Local Rule
54(a)(2), the plaintiffs supported their motion with detailed
time records and accounting of expenses incurred, as well as
affidavits addressing counsel's experience, the complex
nature of the case, and the reasonableness of the fees
charged. The Secretary responded to the motion seeking a
lower total fee amount than that requested by the plaintiffs,
but the Secretary did not identify any particular time
entries as unreasonable or dispute the reasonableness of the
hourly billing rates of plaintiffs' counsel. The
plaintiffs request a total award of $62, 285.85 and the
Secretary suggests that an award of $55, 475.85 is more
regulation promulgated under the Surface Mining Control and
Reclamation Act (“SMCRA”) provides that
attorneys' fees and costs are available to a party in a
SMCRA proceeding “‘who prevails in whole or in
part, achieving at least some degree of success on the
merits' (the eligibility requirement), and who makes
‘a substantial contribution to a full and fair
determination of the issues' (the entitlement
requirement).” W.Va. Highlands Conservancy, Inc. v.
Kempthorne, 569 F.3d 147, 151 (4th Cir. 2009) (quoting
43 C.F.R. § 4.1294(b)). “A party who obtains a
remand order requiring an administrative agency to properly
perform its regulatory duties has achieved some degree of
success on the merits . . . .” Id. at 152. The
Secretary concedes that the plaintiffs have met both the
eligibility requirement and the entitlement requirement.
Therefore, I find that both requirements are satisfied.
further find that the attorneys' fees requested by the
plaintiffs are appropriate under the circumstances.
“The starting point for establishing the proper amount
of [a fee] award is [the so-called lodestar product, ] the
number of hours reasonably expended, multiplied by a
reasonable hourly rate.” Rum Creek Coal Sales, Inc.
v. Caperton, 31 F.3d 169, 174 (4th Cir. 1994). Other
considerations, such as those identified in Johnson v.
Georgia Highway Express, Inc., 488 F.2d 714 (5th
Cir.1974), may require that the award be adjusted from the
lodestar figure. Rum Creek, 31 F.3d at 175.
“The most critical [of those] factor[s] . . . is the
degree of success obtained.” Freeman v.
Potter, No. 7:04CV00276, 2006 WL 2631722, at *5 (W.D.
Va. Sept.13, 2006); see Hensley v. Eckerhart, 461
U.S. 424, 434-35 (1983).
all of these factors, I find the attorneys' fees
requested by the plaintiffs to be reasonable. The hourly
rates claimed are not in excess of those normally claimed in
this type of litigation in this court. Moreover, the time
spent was reasonable and other relevant factors support the
amount claimed. The plaintiffs are therefore entitled to a
total of $61, 810.00 for attorneys' fees associated with
plaintiffs are also entitled to recover “[a]ppropriate
costs and expenses.” 43 C.F.R. § 4.1294. They seek
recovery of the following costs and expenses:
1. $400.00 for the filing fee;
2. $75.32 for automobile rental and gasoline to travel to
oral argument; and
3. $0.53 for note cards used at oral argument.
the filing fee and travel costs claimed are reasonable
expenses of the litigation that would normally be billed to a
client, I find that the charge for note cards is not a
recoverable expense, as office supplies are considered
attorney overhead and generally are not billed to clients.
See, e.g., Pigford v. Vilsack, 89 F.Supp.3d
25, 36 (D.D.C. 2015); Church of Our Savior v. City of
Jacksonville Beach, 108 F.Supp.3d 1259, 1277 (M.D. Fl.
2015); Conservation Law Found., Inc. v. Patrick, ...