IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT. No DD

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1 Case: Date Filed: 05/25/2011 Page: 1 of 43 IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No DD UNITED STATES OF AMERICA, UNITED STATES ENVIRONMENTAL PROTECTION AGENCY, LISA JACKSON, Administrator, in her official capacity, and GWENDOLYN KEYES FLEMING, Regional Administrator, Region IV, in her official capacity, Defendants-Appellants, v. MICCOSUKEE TRIBE OF INDIANS OF FLORIDA and FRIENDS OF THE EVERGLADES, INC., Plaintiffs-Appellees. On Appeal from the United States District Court for the Southern District of Florida Case No civ-Gold/McAliley FRIENDS OF THE EVERGLADES BRIEF IN RESPONSE TO US EPA OPENING BRIEF ON APPEAL OF ATTORNEY FEES JOHN E. CHILDE ATTORNEY FOR FRIENDS OF THE EVERGLADES 960 Linden Lane Suite 901 Dauphin, Pennsylvania Miami, Florida, DAVID P. REINER, II REINER & REINER PA 9100 So. Dadeland Boulevard Tel: Tel: childeje@aol.com dpr@reinerslaw.com

2 Case: Date Filed: 05/25/2011 Page: 2 of 43 CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT The following is a list of all judges, attorneys, persons, associations of persons, firms, partnerships, corporations, and other legal entities that have an interest in the outcome of this case, including subsidiaries, conglomerates, affiliates and parent corporations, any publicly held company that owns 10 percent or more of a party's stock, and other identifiable entities related to a party: Antorcha, Juan Carlos Blank, Robert H. Borkowski, Winston K. Childe, John E. Crowley, David Alexander De Monaco, Charles Friends of the Everglades Gold, Alan S., U.S. District Court Judge Hayman, Kenneth Jones-Foose, Lisa Klock, Joseph P. JI. Mancusi-Ungaro, Philip C-l of l

3 Case: Date Filed: 05/25/2011 Page: 3 of 43 McAliley, Chris M., U.S. District Magistrate Judge Miccosukee Tribe of Indians of Florida Moreno, Ignacia S., Assistant Attorney Gen, Env. & Natural Resources Div. Munson, Gregory M. Nieto, Gabriel E. O'Donnell, Sonia Escobio Rave, Norman L. Jr. Reiner, David P. Rountree, Tamara, N. Sweeney, Stephen J. Thomson, Parker, D. United States of America United States Environmental Protection Agency United States Environmental Protection Agency, Administrator, Lisa Jackson United States Environmental Protection Agency, Regional Administrator, Gwendolyn Keyes Fleming Tamara N. Rountree C-2 of 2 /S/DAVID P. REINER, II

4 Case: Date Filed: 05/25/2011 Page: 4 of 43 STATEMENT REGARDING ORAL ARGUMENT The Friends of the Everglades believe oral argument will not benefit the Court because there are no legal issues in this case concerning the Equal Access To Justice Act ( EAJA ), 28 U.S.C. 2412, that this Court has not ruled on directly. i

5 Case: Date Filed: 05/25/2011 Page: 5 of 43 TABLE OF CONTENTS PAGE CERTIFICATE OF INTERESTED PERSONS AND CORPORATE DISCLOSURE STATEMENT C-1 STATEMENT REGARDING ORAL ARGUMENT i STATEMENT OF JURISDICTION.. 1 COUNTER STATEMENT OF THE ISSUES... 1 COUNTER STATEMENT OF THE CASE Counter Statement of Facts Underlying Merits Litigation... 2 Counter Statement of Attorney Fee Decisions Below STANDARD OF REVIEW RESPONSE TO SUMMARY OF THE ARGUMENT RESPONSE TO EPA ARGUMENT Tests To Determine Enhancement of Fees Under Pierce 11 EPA Attempts to Obfuscate The Issues EPA s Argument Contrary to Eleventh Circuit Determination: District Court is Proper Interpreter of Special Factors Pierce and Jean Do Not Mandate Special Training Atlantic Fish Spotters and Chynoweth v. Sullivan Supportive ii

6 Case: Date Filed: 05/25/2011 Page: 6 of 43 Duplication of Work.. 19 Sufficiency of Knowledge For Special Factor; Sufficiency of Record Distinctive Knowledge or Specialized Skill Was Needful CONCLUSION.. 32 CERTIFICATE OF COMPLIANCE WITH FED.R.APP.P 32(a)(7)(C). 34 CERTIFICATE OF SERVICE.. 35 iii

7 Case: Date Filed: 05/25/2011 Page: 7 of 43 TABLE OF AUTHORITIES CASES PAGE(S) Pierce v. Underwood, 487 U.S. 552 (1988) 1, 5, 6, 8-12, 14-18, 26, 31 Hensley v. Eckerhart, 461 U.S , 26 Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 478 U.S. 546, (1986)...9 Jean v. Nelson, 863 F. 2D 757 (11 th Cir. 1988)....1, 6, 8, 10, 14-19, 31 Pollgreen v. Morris, 911 F. 2d 527 (11 th Cir. 1990)...6, 10, 16 Meyer v. Sullivan, 958 F.2d 1029 (11 th Cir. 1992).. 10 Atlantic Fish Spotters v. Mayhew, ( Fish Spotters ), 205 F. 3d 488 (1 st Cir. 2000) Chynoweth v. Sullivan,( Chynoweth ), 920 F.2d 648, (10 th Cir. 1990).18, 19 Johnson v. University College, 707 F.2d Blasberg v. United States, Case No CV, 1988 WL , *6 June 3, 1998)....8 States v. Willens, 731 F. Supp 1579,1581 (S.D. Fla. 1990).6 Sierra Club v. Hankinson No. CIV A.1:94-CV2501MHS, 1997 WL , *(ND Ga, April 18, 1997) 7 iv

8 Case: Date Filed: 05/25/2011 Page: 8 of 43 TABLE OF AUTHORITIES (cont.) Headrick v. Georgia Dept of Revenue, 285 B.R. 540, (S.D. Ga. 2001)..7 STATUTES, RULES AND REGULATIONS 28 U.S.C Equal Access to Justice Act, 28 U.S.C ( EAJA ), 28 U.S.C. 2412(d)(2)(A)(ii). 1 Federal Clean Water Act ( CWA ), 33 U.S.C CWA, 33 U.S.C Federal Administrative Procedures Act, 5 U.S.C Everglades Forever Act of 1994, , Florida Statutes 2, 3, 7, 13, 22, 23, 25, 27, 29, 30 Phosphorus Rule, and , Florida Administrative Code 2, 3, 23-26, 30 v

9 Case: Date Filed: 05/25/2011 Page: 9 of 43 STATEMENT OF JURISDICTION This Court has jurisdiction under 28 U.S.C COUNTER STATEMENT OF THE ISSUES The basis for EPA s appeal of the lower court s grant of attorneys fees is the award of enhanced fees to Attorney John E. Childe based on the special factor provision of the Equal Access to Justice Act ( EAJA ), 28 U.S.C. 2412(d)(2)(A)(ii), which states: The amount of fees awarded under this subsection shall be based on prevailing market rate for the kind and quality of the services furnished, except that attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee. (Emphasis added). The issues raised by the EPA appeal are whether the court below abused its discretion in applying the Supreme Court test in Pierce v. Underwood, 487 U.S. 552 (1988), and this Court in Jean v. Nelson, 863 F. 2D 757 (11 th Cir. 1988) for determining the meaning of limited availability that will support an enhancement of the EAJA statutory fee rate. 1

10 Case: Date Filed: 05/25/2011 Page: 10 of 43 COUNTER STATEMENT OF THE CASE 1. Counter Statement of Factual and Procedural Background Underlying Merits Litigation The district court below properly summarized the historic factual and procedural background of the case at the beginning of the Order Granting Summary Judgment, July 29, 2008, stating: This case, and its long history, is complex. It is a continuation of litigation over the Everglades that started in Since that time, the litigation has resulted in numerous court decisions, an overall settlement agreement, and then litigation over it. To resolve the litigation (as then pending), the Florida Legislature enacted the Everglades Forever Act in 1994, , Florida Statutes. More recently, the Florida Legislature enacted amendments to the Everglades Forever Act in 2003, and the State of Florida adopted the Phosphorus Rule, and , Florida Administrative Code, applicable to the Everglades Protection Area. Both the 2003 amendments to the Everglades Forever Act and the Phosphorus Rule are the subject of this litigation. Notwithstanding its complexity, the matters at issue may be reduced to two essential questions. The first question is whether the Environmental Protection Agency acted arbitrarily and capriciously under the Federal Clean Water Act, 33, U.S.C 1251 et seq. 2

11 Case: Date Filed: 05/25/2011 Page: 11 of 43 ( CWA ), and the Federal Administrative Procedures Act, 5 U.S.C. 701, et. seq. ( APA ) by concluding that the 2003 amendments to the Florida Everglades Forever Act did not change water quality standards. The second question is whether the Environmental Protection Agency further erred in its subsequent review of the State of Florida s Rule by finding compliance with the Federal Clean Water Act. I conclude against the Environmental Protection Agency on both questions (with some limited exceptions pertinent to the Phosphorus Rule). Contrary to the Environmental Protection Agency s written Determinations, it is my view that the Florida Legislature, in 2003, by adopting the State s draft Long-Term Plan, as proposed by the South Florida Water Management District s Governing Board, changed water quality standards under the Federal Clean Water Act, and violated its fundamental commitment and promise to protect the Everglades, by extending the December 31, 2006 compliance deadline for meeting the phosphorus criterion for at least ten more years. Turning a blind eye, the United States Environmental Protection Agency ( EPA ) concluded that there was no change in water quality standards. The EPA is patently wrong and acted arbitrarily and capriciously in reaching its conclusion. The EPA further compounded its error in the subsequent review of the State of Florida s Phosphorus Rule for compliance with Section 303 of the CWA, 33 U.S.C It has failed to adhere to the mandates of the CWA and analyze whether the Phosphorus Rule was a blanket change to the previously approved December 31, 2006 compliance deadline for those who adopt the Long-Term Plan. 3

12 Case: Date Filed: 05/25/2011 Page: 12 of 43 PP 1-3, Order Granting Summary Judgment, July 29, Excerpted Portions in Friends Tab 323, RE Counter Statement of Attorney Fee Decisions Below EPA challenged Friends request for fees in their entirety because of alleged limited success. Magistrate Judge McAliley found that Friends indisputably is the prevailing party. In reviewing the court s Order Granting Summary Judgment to Plaintiffs the Magistrate Judge summarized the court s multiple findings that EPA s Determinations and arguments that were the subject of the Friends Complaints were arbitrary and capricious, not supported by the record, and contrary to law to determine that EPA s position was not substantially justified. The Magistrate Judge also cited the Court s statement that the EPA s argument fails the test of reason. Friends Tab 395, RE , ). The Magistrate Judge concluded: Thus, viewing this litigation as an inclusive whole, I find that EPA s position was not substantially justified and Friends is entitled to recover its attorneys fees and costs under the EAJA. Friends Tab 395, RE 276. Friends, in its motion, sought $239, for lead counsel, John Childe, based on hours at a rate of $ an hour and $23, for David 1 Friends of the Everglades is submitting its own reproduced record because the Federal Defendants Reproduced Record has omitted large portions of the lower Court s Summary Judgment Order of July 29, 2008, pages 5 through 36 and pages 76 to 101. And the Government s Record fails to include Friends of the Everglades Second Amended Complaint on the 2003 Amendments to the 1994 Everglades Forever (Restoration) Act. 4

13 Case: Date Filed: 05/25/2011 Page: 13 of 43 Reiner based on 92.7 hours at $ an hour. In addition, Friends filed a motion for $18, for Mr. Childe and $1, for Mr. Reiner for litigating the fees issue, for a total award of $282, Friends Tab 395, RE 276. To determine the appropriate hourly fee amount the Magistrate Judge cited the EAJA that [t]he amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (ii) attorneys shall not be awarded in excess of $125 unless the court determines that an increase in the cost of living or a special factor, such as limited availability of qualified attorneys for the proceeding involved, justifies a higher fee. (Emphasis added). Friends Tab 395, RE The Magistrate Judge then conducted an independent review of the record, the qualifications of the attorneys, the expert affidavits submitted, and other hourly rates recently awarded in similar cases and concluded that $ was within the range of market rates. Id. The Magistrate Judge then evaluated whether a special factor would justify enhancing the hourly rate from the statutory $ per hour to the $ market rate. To determine how to interpret the EAJA phrase limited availability to grant enhanced fees, the Magistrate Judge relied on the Supreme Court case of Pierce v. Underwood, 487 U.S. 552, 572 (1988), where the Supreme Court determined that the exception for limited availability of qualified 5

14 Case: Date Filed: 05/25/2011 Page: 14 of 43 attorneys for the proceedings, in some specialize sense rather than just in their general legal competence, refers to attorneys having some distinctive knowledge or specialized skill needful for the litigation in question-as opposed to an extraordinary level of general lawyerly knowledge and ability useful in all litigation. (Magistrate Report, emphasis added). Friends Tab 395, RE 280. The Magistrate Judge then cited The Supreme Court listing in Pierce that practice specialties such as patent law, or knowledge of foreign law or language were examples of specialized skills and distinctive knowledge that would qualify as examples of special factors, Where such qualifications are necessary and can be obtained only at rates in excess of the [statutory] cap, reimbursement above the limit is allowed. Id. Friends Tab 395, RE 280. The Magistrate Judge determined that Mr. Childe did possess distinctive knowledge or specialized skill needful for the litigation. The Magistrate Judge cited numerous cases that have held that special expertise in a narrow legal specialty may entitle counsel to an upward adjustment under EAJA, including the this Court s decision in Pollgreen v. Morris, 911 F. 2d 527, 538 (11 th Cir. 1998), which relied on Jean v. Nelson, 863 F. 2D 757 (11 th Cir. 1988), where this Court noted that on remand the district court was free to consider the potential expertise of counsel in immigration matters in reevaluating the appropriate hourly rate under the EAJA. 201United States v. Willens, 731 F. Supp 1579,1581 (S.D. Fla. 6

15 Case: Date Filed: 05/25/2011 Page: 15 of ) (Counsel s knowledge of Federal Aviation Administration regulations was specialized skill ), Sierra Club v. Hankinson No. CIV A.1:94-CV2501MHS, 1997 WL , *(ND Ga, April 18, 1997) (environmental expertise is a special factor supporting enhancement), Headrick v. Georgia Dept of Revenue, 285 B.R. 540, (S.D. Ga. 2001) (expertise in Eleventh Amendment sovereign immunity.) Friends Tab 395, RE 281. The Magistrate Judge then found that the Record of the case established that Mr. Childe has a special expertise in the in the narrow area of the CWA, with particular knowledge of its interrelationship with the Everglades Restoration Act (Everglades Forever Act); he also has a strong understanding of the underlying environmental science. Mr. Childe has developed that specialized expertise over years of practice: for twenty-eight years he has specialized in public interest environmental litigation, participating in more than 150 federal environmental cases. (DE 335-3, PP3,6; 350, p. 86, PP5-7). The court then went on to state: Importantly, Mr. Childe has extensive knowledge of the issues surrounding the Everglades Restoration (Forever) Act. (DE 350, p.10). The Magistrate Judge found that [t]he regulatory and scientific issues raised in this action were extraordinarily complex, as evidenced by the Court s lengthy order on the motions for summary judgment, and required counsel with Mr. Childe s developed specialization. Friends Tab 395, RE 280. The Magistrate Judge then 7

16 Case: Date Filed: 05/25/2011 Page: 16 of 43 stated: I thus conclude that Mr. Childe has established a special factor that entitles him to an enhancement of his hourly rate under the EAJA. Id. In the final calculation of fees, the Magistrate Judge imposed reductions, including a ten percent reduction across the board to reflect Friends partial success, and limited the hourly rate for pursuit of fees to the statutory amount. Mr. Childe was awarded $212, in fees; David P. Reiner was awarded $12,337.26; And Friends of the Everglades was awarded $10, in costs. Friends Tab 395, RE Judge Gold subsequently issued an order adopting the Magistrate s Report in full, Friends Tab 405, RE 292, and overruled EPA s objections thereto. EPA first argued that a practice specialty is not sufficient for an upward adjustment pursuant to the EAJA. Judge Gold disagreed, based on the opinion of the United States Supreme Court in Pierce v. Underwood, supra, and this Court s opinions in Jean v. Nelson, 863F. 2d 759, 781 (11 th Cir. 1988) (noting that the fact that some of the participating attorneys have a special expertise in immigration law could be a ground for which a rate adjustment (under the EAJA) might be proper on the basis of special factor ); and Blasberg v. United States, case no CV, 1988, WL , *6 June 3, 1998 (noting that specialization in bankruptcy law can constitute a special factor under the EAJA and allowing upward 8

17 Case: Date Filed: 05/25/2011 Page: 17 of 43 adjustment based on fact that tax law is every bit as much a specialty as immigration or patent law ). EPA then argued that the Magistrate Judge erred by declining to recommend more than a ten percent reduction, because it does not adequately reflect the lack of success under the ESA [DE 397]. The court determined, While I agree that Friends should not be permitted to recover fees pursuant to the EAJA for its ESA claim, Friends fees submission eliminated all billing related to the ESA claim. [DE 353, p.2]. Judge Gold then concluded stating: Because Mr. Childe has unequivocally demonstrated that he possessed a distinctive knowledge or specialized skill needful for this litigation, I agree with Magistrate Judge McAliley that an upward departure from the statutory rate is warranted for the highly specialized legal services rendered by Mr. Childe. Friends Tab 405, RE STANDARD OF REVIEW This Court reviews a district court s decision to award fees, and the amount of such fees, for an abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 571, 108 S.Ct. at 255 ( we are satisfied that the text of the statute permits, and sound judicial administration counsels, deferential review of a district court s decision regarding attorney s fees under the EAJA. ); Hensley v. Eckerhart, 461 U.S. 424, 437 (1983); Pennsylvania v. Delaware Valley Citizens Council for Clean Air, 9

18 Case: Date Filed: 05/25/2011 Page: 18 of U.S. 546, (1986); Jean v. Nelson, 863 F.2d 759, 769; Meyer v. Sullivan, 958 F.2d 1029, 1033 (11 th Cir. 1992). RESPONSE TO EPA SUMMARY OF ARGUMENT It is patently untrue, as EPA argues (Opening Brief, P. 8-9), that the lower court disregarded relevant Supreme Court and Court of Appeals authority demonstrating the type of special factors that justify or support a special enhancement of fees under the EAJA. See Magistrate McAliley Report, RE 199, Judge Gold Order, RE 213, citing the Supreme Court decision in Pierce v. Underwood, supra, and this Court s decisions in Jean v. Nelson, 863F. 2d 759, 781 (11 th Cir. 1988), and Pollgreen v. Morris, 911 F. 2d 527, 538 (11 th Cir. 1990), for that very proposition. It is also patently untrue that the EAJA allows special factors only where counsel has distinct knowledge. (EPA Opening Brief, P. 9.) The Supreme Court in Pierce determined two separate and distinct types of special factors: some distinctive knowledge or some specialized skills. EPA is also wrong in stating that the district court authorized fee enhancement based solely on practicing in a particularized area of law. (Opening Brief, P. 9.) The Magistrate Judge looked to the Record of the case and found that it shows that Mr. Childe has a special expertise in the narrow area of the CWA, (Clean Water Act), with particular knowledge of the interrelationship 10

19 Case: Date Filed: 05/25/2011 Page: 19 of 43 with the Everglades Restoration; he also has a strong understanding of the underlying environmental science The regulatory and scientific issues raised in this action were extraordinarily complex, as evidenced by the Court s lengthy order on the motions for summary judgment, and required counsel with Mr. Childe s highly developed specialization. Friends Tab 395, RE 282. The EPA is wrong in asserting that the District Court s determination that Mr. Childe had distinct knowledge of Everglades Restoration and the CWA is not supported by the Record. The Magistrate Judge reviewed the record, including the Plaintiff s multiple Complaints, and the Court s Order granting summary judgment, Friends Tab 395, RE , 282. Lastly, EPA is wrong in asserting that Mr. Childe s distinctive knowledge and specialized expertise was not necessary to the litigation of the merits of the case. (Opening Brief, P. 10.) See response to EPA argument below. RESPONSE TO EPA ARGUMENT Tests To Determine Enhancement of Fees Under Pierce EPA s appeal is based on challenging the district court s application of a special factor to grant the determined market rate of $ per hour to the Plaintiff s attorney, John Childe, rather than the EAJA statutory amount of $ The relevant section of the EAJA regarding fee enhancement states: 11

20 Case: Date Filed: 05/25/2011 Page: 20 of 43 The amount of fees awarded under this section shall be based upon the prevailing market rates for the kind and quality of the services furnished, except that (ii) attorney fees shall not be awarded in excess of $125 per hour unless the court determines that an increase in the cost of living or a special factor, such as limited availability of qualified attorneys for the proceedings involved justifies a higher fee. 28 U.S.C. 2412(d)(2)(A)(ii). (Emphasis added.) The Supreme Court in Pierce has interpreted the statutory exception for limited availability to mean qualified for the proceedings in some specialized sense, rather than just in their general legal competence. 487 U.S. at 572. More specifically, the Supreme Court states: Limited availability of qualified attorneys for the proceedings involved must refer to attorneys qualified for the proceedings in some specialized sense, rather than just in their general legal competence. We think it refers to attorneys having some distinctive knowledge or specialized skill needful for the litigation in question as opposed to an extraordinary level of the general lawyerly knowledge and ability useful in all litigation. Examples of the former would be an identifiable practice specialty such as patent law, or knowledge of foreign law or language. Id. (emphasis added). Thus, in Pierce the Supreme Court interpreted the EAJA special factor test to grant a fee enhancement for either having some distinctive knowledge, such as a language skill or knowledge of foreign law or some specialized skill, such as patent law. 12

21 Case: Date Filed: 05/25/2011 Page: 21 of 43 EPA Attempts to Obfuscate the Issues EPA attempts to obfuscate the findings of the district court by first implying that the court relied solely on the specialized skills test. (EPA Brief, FN 1, P ) Then, EPA asserts that the district court erred by enhancing the fee award solely on the knowledge he [Attorney Childe] gained from practicing public interest environmental law. (EPA Opening Brief, P. 21.) Neither statement is what the district court held. The Magistrate Judge below found that the Record of the case established that Mr. Childe has a special expertise in the narrow area of the CWA, with particular knowledge of its interrelationship with the Everglades Restoration Act (Everglades Forever Act); he also has a strong understanding of the underlying environmental science. Mr. Childe has developed that specialized expertise over years of practice: for twenty-eight years he has specialized in public interest environmental litigation, participating in more than 150 federal environmental cases. (DE 335-3, PP3,6; 350, p. 86,PP5-7). Friends Tab 395, RE 282. The district court then stated: Importantly, Mr. Childe has extensive knowledge of the issues surrounding the Everglades Restoration (Forever) Act. (DE 350, p.10) The regulatory and scientific issues raised in this action were extraordinarily complex, as evidenced by the court s lengthy order on the motions for summary judgment, and required counsel with Mr. Childe s developed specialization. RE 282. The 13

22 Case: Date Filed: 05/25/2011 Page: 22 of 43 Magistrate Judge then stated: I thus conclude that Mr. Childe has established a special factor that entitles him to an enhancement of his hourly rate under the EAJA. Id. Judge Gold, in adopting the full Magistrate Judge Report and Recommendation, concluded that [b]ecause Mr. Childe has unequivocally demonstrated that he possessed a distinctive knowledge or specialized skills for this litigation, I agree with Magistrate Judge McAliley that an upward departure from the statutory rate is warranted for the highly-specialized legal services rendered by Mr. Childe. Gold Opinion, Friends Tab 405, RE Thus, the court below tied together the specialized skills obtained by Mr. Childe through the twenty-eight years of specialized practice in the CWA with the distinctive knowledge of the regulatory and scientific issues surrounding Everglades Restoration, which the Court found to be extraordinarily complex, within the purview of Pierce and Jean. EPA s Argument Contrary to Eleventh Circuit Determination: District Court is Proper Interpreter of Applying Special Factors EPA contends that in Jean v. Nelson, 863 F. 2d. 757 (11 th Cir. 1988), this Court did not directly address how to establish whether an attorney has distinct knowledge or specialized skill to determine whether a special factor enhancement should be applied. (Opening Brief, P. 18.) That is an obvious misreading of the case. This Court in Jean specifically determined that it is within the discretion of 14

23 Case: Date Filed: 05/25/2011 Page: 23 of 43 the district court to make that interpretation. This Court addressed the question with the following statement: The dissent contents that attorneys practicing immigration law do not have any distinctive knowledge or specialized skill needful for the litigation in question within the meaning of that phrase as it is used in Pierce, 108 S. Ct. at 255. [Emphasis added by the court.] The majority agrees that not every immigration attorney or every immigration lawsuit warrants an upward adjustment of hourly rates and we would suggest that such is also the case in some patent or foreign law cases. Lawyers and judges could spend the balance of time arguing about the meaning of the phrase from Peirce. Interpretation of this phrase is better left to the discretion of the district court as application of the phrase will depend on the complexity of the case ( the litigation in question ) and on the experience ( distinctive knowledge ) and acquired expertise ( specialized skill ) of the particular billing attorney. We are confident that the district court can properly interpret and apply the above quoted phrase to the facts of the case. Id. at 774 (emphasis (bold) added). The holding of this Court in Jean is in line with Pierce, in which the Supreme Court states that we are satisfied that the text of the statute permits, and sound judicial administration counsels, deferential review of a district court s decision regarding attorney s fees under the EAJA. 487 U.S. at 571, 108 S.Ct. at 255. In Jean, this Court has provided some guidance to the district courts on how to construe the Pierce special factor language of some distinctive knowledge or 15

24 Case: Date Filed: 05/25/2011 Page: 24 of 43 specialized skill needful for the litigation in question. (emphasis added). In Jean, the complexity of the case is a relevant consideration of the litigation in question. 863 F.2d. at 774. The experience of the attorney is relevant in considering whether the attorney has distinct knowledge, and whether the attorney has acquired expertise is relevant to determine if the attorney has a specialized skill. Id. The court specifically suggested that a special factor rate might be appropriate for attorneys who have a special expertise in immigration law or are fluent in foreign languages relevant to the litigation, id. at 774; citing Pierce 487 U.S. at , noting that practice specialty such as patent law, or knowledge of foreign language could constitute a special factor. The decision in Jean has subsequently been consistently applied in the Eleventh Circuit. In Pollgreen v. Morris, 911 F. 2d 527, 538 (11 th Cir. 1990), this Court remanded to the district court, indicating that the lower court was free to consider the potential expertise of counsel in immigration matters in reevaluating the appropriate hourly rate under the EAJA. RE 200. No Special Education or Training EPA argues that since the Supreme Court used the example of patent law to illustrate an identifiable practice specialty, and that the practice of patent law requires some scientific and technical training, then the Supreme Court impliedly requires all identifiable practice specialties to require some additional scientific 16

25 Case: Date Filed: 05/25/2011 Page: 25 of 43 and technical training before it can be recognized as a special skill for enhancement fee purposes. (EPA Opening Brief, ) There is no justification for this conclusion. The Supreme Court in Pierce as well as this Court in Jean, require that the attorney have either some distinctive knowledge or specialized skill that is relevant ( needful ) to the case. In each case the Courts separated distinctive knowledge, with examples such as a language skill, from specialized skill with an identified practice specialty. Either or both of these must then be applied to the case before the district court, and, as this Court suggests, if the complexity of the case is such that the knowledge or practice specialty is needed, then the special factor under the EAJA can be applied. But it is up the district court to make that determination. Jean, 863 F.2d at 774. The district court applied these tests as directed by the Supreme Court in Pierce and this Court in Jean. The district court found that Mr. Childe had both the distinctive knowledge of the Everglades Restoration issues and the identified practice specialty, with twenty-eight years of litigation experience under the CWA, and, in relation to his knowledge of Everglades Restoration issues mandated under the CWA, that Mr. Childe possessed a strong understanding of the underlying environmental science, Tab 395, RE all of which, when applied to the complexity of the case, justified the granting of a special factor enhancement. Friends Tab 395, RE , Friends Tab 405, RE

26 Case: Date Filed: 05/25/2011 Page: 26 of 43 Atlantic Fish Spotters and Chynoweth v. Sullivan Supportive EPA repeatedly cites Atlantic Fish Spotters v. Mayhew, ( Fish Spotters ) 205 F. 3d 488, (1 st Cir. 2000), and Chynoweth v. Sullivan,( Chynoweth ) 920 F.2d 648, (10 th Cir. 1990), to support its argument. However, these cases are in line with this Court s Opinion in Jean, and the district court below. In Fish Spotters the government appealed the award of special factor enhancement for one of three attorneys in the case because of his specialty in fisheries law. In addressing the government s arguments that the limited availability test require some special discipline over and above the expertise that any experienced counsel might develop in his own specialty, the First Circuit panel made the following determination: The government cites some circuit authority that could be read in its favor, while readily conceding that the Ninth Circuit has taken a more liberal view of the statute. However, we do not read the Supreme Court or most of the circuit cases as adopting a mechanical rule that automatically excludes a specialist from extra compensation merely because no separate credential exists for his field and because no foreign law or language is required. Such a reading is neither compelled by the statutory language or the examples in Pierce nor consistent with what appears to be the underlying purpose of the exception. Atlantic Fish Spotters v. Mayhew, ( Fish Spotters ) 205 F. 3d 488, 491, (1 st Cir. 2000). 18

27 Case: Date Filed: 05/25/2011 Page: 27 of 43 In Chynoweth the tenth circuit simply found that social security law is not beyond the grasp of a competent attorney with access to a law library and the other accoutrements of modern legal practice. Chynoweth v. Sullivan ( Chynoweth ), 920 F.2d 648, 649, (10 th Cir. 1990). Duplication of Effort EPA argues that the district court erred by failing to establish that Mr. Childe provided distinctive knowledge or a specialized skill that were not already provided by attorneys for the Miccosukee Tribe (the Tribe ). (EPA Opening Brief, P ) In Jean, 863 F.2d at 773, this Court recognized that in complex cases multiple counsel is understandable. In the cases before the district court, the Tribe was represented by a competent law firm. However, Friends was represented by only one attorney on the merits, Mr. Childe. In Jean, this Court went on to find that [w]hile duplication of effort is a proper ground for reducing a fee award, a reduction is warranted only if the attorneys are unreasonably doing the same work, citing Johnson v. University College, 707 F.2d 1205, 1208 (11 th Cir.). But it is the government s obligation to specify any such incidences. Id. EPA argues that since the oral arguments were made primarily by the attorney for the Tribe, and several briefs were filed by the Plaintiffs jointly, that the district court was without sufficient evidence that Mr. Childe s distinctive 19

28 Case: Date Filed: 05/25/2011 Page: 28 of 43 knowledge and special skills were needed for the case. But what EPA fails to concede to this Court is that the Plaintiffs frequently coordinated their efforts to purposefully avoid duplication. In addition, as discussed previously in this Response, the district court made sufficient findings, supported by the record (see further discussion below), to demonstrate that Mr. Childe has both the distinctive knowledge and special skills needed for the case. Sufficiency of Knowledge For Special Factor; Sufficiency of the Record EPA argues that the district court below awarded a special factor rate enhancement on grounds that are so inclusive that they emasculate EAJA s rate cap, (EPA Opening Brief, p. 21); that the district court s decision was based solely on the knowledge he (Mr. Childe) allegedly acquired from practicing public interest environmental law, (EPA Opening Brief, p. 21); that the district court s interpretation of the EAJA stands for the proposition that an enhanced fee award would be warranted for all attorneys who have a particular knowledge of, or expertise in, statutory schemes that form the basis of their practice. (EPA Opening Brief, p. 22); and the fact that the source of Mr. Childe s knowledge is practicing law, and this generally applicable knowledge cannot constitute a ground for fee enhancement. (EPA Opening Brief, p. 23); that, in response to the court s finding that Attorney Childe had a strong understanding of the environmental science underlying the case, it was an abuse of discretion for the district court to enhance 20

29 Case: Date Filed: 05/25/2011 Page: 29 of 43 Mr. Childe s award simply because he supposedly possessed an understanding of the terms and subject matter that underlie his practice. (EPA Opening Brief, p. 26); and finally EPA argues that Mr. Childe s purported knowledge of terms and principles underlying his area of practice is a category of knowledge that can apply to all attorneys practicing in technical area of administrative law. EPA Opening Brief, p. 30.); and that, even assuming that the knowledge the court relies on constitutes the type knowledge that merits a special enhancement factor, the District Court did not identify anything in the record that demonstrates that Mr. Childe possessed distinctive knowledge that would merit a special factor enhancement. EPA Opening Brief, PP The Magistrate Judge s specific findings supporting a determination of special factor were as follows: (1) The record shows that Mr. Childe has a special expertise in the narrow area of the CWA [Clean Water Act] ; (2) Mr. Childe has particular knowledge of [the CWA s] interrelationship with the Everglades Restoration Act ; (3) Mr. Childe also has a strong understanding of the underlying environmental science ; (4) Mr. Childe has developed that specialized expertise over years of practice: for 28 years he has specialized in public interest environmental litigation, participating in more than 150 environmental cases. [DE 335-3, pp3, 6; 350, p. 86, pp5-7]. 21

30 Case: Date Filed: 05/25/2011 Page: 30 of 43 (5) Importantly, Mr. Childe has extensive knowledge of the issues surrounding the Everglades Restoration Act. [DE 350,p. 10]. (6) Plaintiffs could not have successfully brought this litigation without counsel who had mastery of this complex intersection of science and environmental law. ; (7) The regulatory and scientific issues raised in this action were extraordinarily complex, as evidenced by the Court s lengthy order on the motions for summary judgment, and required counsel with Childe s highly developed specialization. Magistrate s Report and Recommendation, March 15, 2010; (Numeric seriations added) (Friends Tab 395, RE 282). The factors the Magistrate Judge relied on go far beyond broad generalized knowledge of public interest law. They are not statutory schemes that form the basis of a public interest practice. They are not categories of knowledge that can apply to all attorneys. They relate specifically to the facts and circumstances of this case, the Everglades Forever (Restoration) Act and the complex science and litigation that make up an extended, complicated history of the case. The Magistrate Judge emphasized, Mr. Childe has particularized knowledge of the CWA s (Federal Clean Water Act) interrelationship with the Everglades Restoration Act. And, Importantly, Mr. Childe has extensive knowledge of the issues surrounding the Everglades Restoration (Forever) Act. RE

31 Case: Date Filed: 05/25/2011 Page: 31 of 43 The Magistrate Judge specifically cited the district court order granting Summary Judgment dated July 29, 2008, in concluding that, The regulatory and scientific issues raised in this action were extraordinarily complex, as evidenced by the Court s lengthy Order on Motions for Summary Judgment, and required counsel with Childe s highly developed specialization. Friends Tab. 395, RE 282, 292. There is certainly sufficient evidence in the Court Order to support the Magistrate Judge s findings. The district court Order began by conceding that these cases and their long history, is complex. The court noted that these cases are a continuation of litigation over Everglades protection that started in The court also noted that, since 1988, Everglades litigation has resulted in numerous lawsuits and court decisions, a settlement agreement, and then litigation over the scope of the settlement. The Order discusses how, in an effort to resolve that litigation, the Florida Legislature passed the Everglades Forever Act, and thereafter passed the 2003 Amendments to the Everglades Forever Act. (EPA Tab 323, p. 75) and the State of Florida adopted the Phosphorus Rule (Water Quality Standard). Subsequently, in twenty pages of the opinion, the district court s Order details the complex factual and procedural history of the Everglades Forever Act up to the 2003 Amendments, and the need for water quality standards that lead to 23

32 Case: Date Filed: 05/25/2011 Page: 32 of 43 the Phosphorus Rule pages 16 through 35 of the Order Granting Summary Judgment, (Friends Tab 323, RE ). The history began with the uniqueness of the Everglades system. It is unlike any other ecosystem on earth. It is a National resource of exceptional recreational and ecological significance. Tab 323, RE 91. It describes the Everglades as an oligotrophic system, naturally low in nutrients, and a disproportionately low level of phosphorus. Tab 323, RE 92. It includes not only Everglades National Park but also the Loxahatchee Wildlife Refuge as well as two large areas north of the Park known as Water Conservation Areas II and III, where the Miccosukee Indians live. Id. At 91. That violations of Florida s water quality standards were so severe that they threatened the ecological integrity and ultimately the survival of the Park and the Refuge. Id. At 94. And that entire system is endangered by adverse changes in water quality, and in the quantity, distribution and timing of flows, and therefore must be restored and protected. Id. at 95. The district court s Order deals with the changing compliance deadline for developing and enforcing water quality standards for discharges into the Everglades to be met in order to prevent further harm from occurring (Id, at 96) as well as the need for a numeric (water quality) standard of 10 parts per billion of phosphorus to be met in order to reduce the nutrient loads to the point where they no longer cause an imbalance in the natural flora and fauna. Id. At 97. The 24

33 Case: Date Filed: 05/25/2011 Page: 33 of 43 Order deals with the complexity of the 1994 Everglades Act and how it established a long-term period of study and evaluation leading up to the adoption and completion of the numeric standard and how the existing narrative standard for nutrients remained in effect as the applicable water quality standard. Id, The Order reviewed the litigation history of the 1994 Everglades Forever Act, including Chief Judge Davis opinion (Id. At 99), EPA s 1999 Determination, Judge Seitz opinion, affirmed by this Court, Friends of the Everglades v. EPA, Case No , at 3 (11 th Cir. July 19, 2002)[Case No , DE 83]. Friends Tab 323, pp 106. Mr. Childe wrote and filed the two Complaints on behalf of the Friends of the Everglades that were the subject of the district court s Summary Judgment Order of July 29, 2008, Friends Second Amended Complaint on the EPA Determination approving the 2003 Amendments to the 1994 Everglades Forever Act, [DE 113], and Friends Second Amended Complaint dealing with the Phosphorus Rule [DE 150] ( Order of July 29, 2008, Page 5, Friends Tab.323, RE 80). The district court s Summary Judgment Order addressed numerous Motions, including Friends of the Everglades Motion for Partial Summary Judgment on its Second Amended Complaint regarding the 2003 Amendments to the Everglades Forever Act, [DE 226], and the Friends of the Everglades Motion For Summary 25

34 Case: Date Filed: 05/25/2011 Page: 34 of 43 Judgment with respect to the Phosphorus Rule, [DE 255] ( Summary Judgment Order, p. 6, Friends Tab 323, RE 81). A detailed analysis of the two Complaints and the district court s Order, and how they substantiate Mr. Childe s knowledge of the complex interrelationship between esoteric CWA water quality standards requirements in relation to the complex factual and legal requirements of the Everglades Restoration process would essentially require this Court to rehear the entire summary judgment proceeding which the district court held and ruled on (and which was not appealed). That is not the purpose of attorney fee process under the EAJA. As the Supreme Court repeatedly stated, A request for attorney s fees should not result in a second major litigation. Pierce, at 563, citing Hensley v. Eckerhart, 461 U.S. 424,437. Under the abuse of discretion standard there just needs to be some evidence in the record to support the findings of the Court below. The abuse of discretion standard allows a range of choice for the district court, so long as that choice does not constitute a clear error of judgment. See, United States v. Kelly, 888 F.2d 732, 745 (11th Cir.1989)(citing Kern v. TXO Prod. Corp., 738 F.2d 968, (8th Cir.1984) (The very concept of discretion presupposes a zone of choice within which the trial courts may go either way). 26

35 Case: Date Filed: 05/25/2011 Page: 35 of 43 The interlocking, complex history of the Everglades Restoration (Forever) Act that the district court s Summary Judgment Order spelled out was an important element in Friends of the Everglades Second Amended Complaint dealing with the 2003 Amendments to the Everglades Forever Act (Friends Tab 113, RE 6-8) and which the Court below adopted. That included citing to and attaching the full opinion of Judge Davis to Plaintiff s Complaint (Tab 113, RE 7) which the Summary Judgment Order relied on, devoting four pages of the Order to Judge Davis, Friends Tab 323, RE In Friends Second Amended Complaint dealing with the 2003 Amendments to the Everglades Forever Act there is further evidence of the knowledge of the interrelationship between the CWA and the scientific issues of the Everglades Restoration in the section entitled Violation of Section 303, Friends Tab 113, Re Additionally, the Friends complaint specifically linked the issues of the 2003 Amendments to Everglades Forever Act and the NPDES permits being issued by the State to the primary dischargers into the Everglades. Friends Tab 113, RE The Magistrate Judge also based her findings on the Verified Motion For Fees and affidavits in support submitted by Plaintiff - including the affidavit John Childe and the Affidavit of Juanita Greene, Conservation Chair of Friends of the Everglades, which were not challenged by the Defendants below. 27

36 Case: Date Filed: 05/25/2011 Page: 36 of 43 The affidavit of Juanita Greene established that Attorney Childe has represented Friends in Everglades matters since He was asked to represent Friends because there were no attorneys that Friends knew in the State of Florida with Mr. Childe s experience representing Environmental groups in Federal Court on CWA issues; and that, The litigation challenging the EPA for approving the 2003 Amendments and the numeric standard for phosphorus are the most complex CWA actions the Friends has undertaken. To challenge both the State and Federal action which on its faces seems to be positive administration of their responsibilities requires special knowledge and skills just to be willing to take such a challenge. There are no attorneys that Friends is aware of with Mr. Childe s special experience who would be willing to take on such litigation for an hourly rate less than the community market rate! Friends Tab 350, Exhibit E, P. 3. The affidavit of John Childe established that Mr. Childe has been licensed to practice law in the State of Pennsylvania for thirty-five years; is admitted to practice before the Supreme Court, the United States Court of Appeals for the District of Columbia, and the Third Circuit and the Eleventh Circuit Courts of Appeals. He has been admitted pro hac vice in the Southern District of Florida representing Friends of the Everglades since 1993 in eight different cases dealing with Everglades Restoration and the CWA. He has represented Friends of the Everglades on Everglades Restoration and CWA issues in three Appeals before 28

37 Case: Date Filed: 05/25/2011 Page: 37 of 43 the Eleventh Circuit Court of Appeals and twice before the Supreme Court. Since the passage of the Everglades Forever Act in 1994, Mr. Childe has represented Friends of the Everglades in opposing the Act. He was the attorney for Friends before the District Court for the Southern District of Florida (Seitz, J.) (Case No , DE77) which challenged the EPA Determination of 1999 that allegedly adopted the previous Judge Davis district court order which found the 1994 Everglades Forever Act to be in violation of the CWA. Mr. Childe also represented Friends in the appeal of Judge Seitz Opinion to this Court in Friends of the Everglades v. EPA, Case No , at 3 (11 th Cir. July 19, 2002) [Case No , DE 83], (See pp of Order of July 29, 2008, dealing with the relevant history of the Everglades leading up to the Complaints. Friends Tab. 323, RE Distinctive Knowledge or Specialized Skill Was Needful The Magistrate Judge below found that Plaintiffs could not have successfully brought this litigation without counsel who had mastery of this complex intersection of science and environmental law. The regulatory and scientific issues raised in this action were extraordinarily complex, as evidenced by the Court s lengthy order on the motions for summary judgment, and required counsel with Mr. Childe s highly developed specialization. Friends Tab 395, RE

38 Case: Date Filed: 05/25/2011 Page: 38 of 43 The Magistrate Judge s Report and Recommendations were adopted in full by the district court. Friends Tab 405, RE 292. In addition to the Magistrate Judge s findings, Judge Gold found that [b]ecause Mr. Childe has unequivocally demonstrated that he possessed a distinctive knowledge or specialized skill needful for this litigation I agree with Magistrate Judge McAliley that an upward departure from the statutory rate is warranted for the highly-specialized legal services rendered by Mr. Childe. Tab 405, RE 294. Judge Gold, in making this determination for the district court, stated that having presided over this matter for approximately five years, and being intimately familiar with the nature of these proceedings, I do not hesitate to conclude that Mr. Childe s profound understanding of esoteric scientific principles and terms regarding water quality standards (e.g. TBELS, WQBELS, BAPRTs, STAs etc.) constitutes a specialized skill as opposed to general knowledge and ability to be useful in all litigation. RE 295. EPA argues that the issues raised in the Plaintiff s Complaints were not complex, but were fundamental Administrative law challenges to EPA s review of Florida s EFA [Everglades Forever Act] Amendments and Phosphorus Rule. EPA Opening Brief, P. 32. EPA stated that while it could be argued that any specialization that Mr. Childe allegedly possessed was perhaps helpful, or that an attorney unfamiliar with the CWA or the Everglades might have to spend 30