United States District Court, W.D. Texas, Austin Division
PITMAN, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff Michael Kleinman's
(“Kleinman”) motion for attorney's fees and
costs, (Dkt. 109), and the parties' responsive briefing.
Having considered the parties' arguments, the evidence,
and the relevant law, the Court will grant Kleinman's
motion in part.
brought this action against Defendant City of Austin
(“the City”) under the Clean Water Act
(“CWA”), 33 U.S.C. §§ 1311(a), 1319,
and 1365(a). (Compl., Dkt. 1, at 1). Kleinman initially
sought civil penalties and attorney's fees and costs.
(Id. at 4; First Am. Compl., Dkt. 15, at 4). At
trial, Kleinman also requested injunctive relief in the form
of an independent engineer who would have an oversight role
in the City's ongoing efforts to reduce erosion on the
channel. (Tr., Dkt. 104, at 99:9-100:22). In post-trial
briefing, Kleinman reiterated his request for injunctive
relief along the same lines. (Pl.'s Prop. Find. Fact,
Dkt. 105, ¶ 14). Neither at trial nor in his post-trial
briefing did Kleinman ask that the City pay a civil penalty.
two-day trial, the Court found that the City had violated
Section 1311(a) of the CWA. (Find. Fact & Concl. Law,
Dkt. 107, at 10). Based on that finding, the Court was
required to assess a civil penalty, see 33 U.S.C.
§ 1319(d), and did so. (Find. Fact & Concl. Law,
Dkt. 107, at 16). However, the Court found that only a
nominal penalty of $25, 000 was appropriate. (Id.).
The Court denied Kleinman's request for injunctive
relief. (Id. at 11-13).
now moves for attorney's fees in the amount of $95,
388.99; court costs in the amount of $952.70; and expert fees
in the amount of $13, 642.50. (Mot. Att'y Fees Ex. E,
Dkt. 109-1, at 55). The City argues that the Court should
abandon the lodestar calculation and award no more than
nominal attorney's fees. (Resp. Mot. Att'y Fees, Dkt.
110, at 2).
provides that a court may “award costs of litigation
(including reasonable attorney and expert witness fees) to
any prevailing or substantially prevailing party, whenever
the court determines such award is appropriate.” 33
U.S.C. § 1365(d). “In order to award
attorney's fees under § 1365(d), a district court
must make two findings. First, it must find that the fee
applicant is a ‘prevailing or substantially prevailing
party.' Second, it must find that an award of
attorney's fees is ‘appropriate.'”
Saint John's Organic Farm v. Gem Cty. Mosquito
Abatement Dist., 574 F.3d 1054, 1058 (9th Cir. 2009).
The Court found the City liable for a CWA violation and
ordered it to pay a civil penalty; there is no question that
Kleinman is a prevailing party, and the City does not argue
whether a fee is appropriate, in the Fifth Circuit, “an
award is usually ‘appropriate' when a party has
advanced the goals of the statute invoked in the
litigation.” Chem. Mfrs. Ass'n v.
U.S.E.P.A., 885 F.2d 1276, 1279 (5th Cir. 1989). That is
a closer question. The CWA's stated objective is
“to restore and maintain the chemical, physical, and
biological integrity of the Nation's waters.” 33
U.S.C. § 1251(a). The Court found no evidence that the
sedimentary discharge caused partly by the City's actions
was harmful to human health or detrimental to the Colorado
River's ecosystem. (Find. Fact & Concl. Law, Dkt.
107, at 13). Nonetheless, rock and sand are pollutants under
the CWA, 33 U.S.C. § 1362(6), and Kleinman secured a
civil penalty that may deter future discharges. See
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC),
Inc., 528 U.S. 167, 1850 (2000) (finding that CWA civil
penalties “deter future violations” of the act).
The Court finds that Kleinman has sufficiently advanced the
goals of the CWA that an award is appropriate.
determined that an award of attorney's fees is
appropriate, the Court must then determine the proper amount
of the award. The lodestar model is typically the correct
approach to calculate an appropriate fee award. See City
of Burlington v. Dague, 505 U.S. 557, 562-67 (1992)
(stating that the court's case law on reasonable fee
awards applies to the CWA and discussing the merits of the
lodestar model). There are a number of factors relevant to
determining a fee award, Johnson v. Georgia Highway Exp.,
Inc., 488 F.2d 714, 719 (5th Cir. 1974); however, none
is more important than the results obtained. See Hensley
v. Eckerhart, 461 U.S. 424, 436 (1983) (“[T]he
most critical factor is the degree of success
obtained.”). “[W]here the plaintiff achieved only
limited success, the district court should award only that
amount of fees that is reasonable in relation to the results
obtained.” Id., at 440. The extent of a plaintiff's
results are so important to the fee analysis that “[i]n
some circumstances, even a plaintiff who formally
‘prevails'” within the meaning of a statute
“should receive no attorney's fees at all.”
Farrar v. Hobby, 506 U.S. 103, 115 (1992); see
also Id. at 117 (O'Connor, J., concurring)
(“[W]hen a plaintiff's victory is purely technical
or de minimis, a district court need not go through
the usual complexities involved in calculating attorney's
sued the City to vindicate an aesthetic injury personal to
him. (Find. Fact & Concl. Law, Dkt. 107, at 13). He
failed to present evidence that the ongoing sedimentary
discharge was harmful to plant or animal life, or that it
otherwise threatened the Colorado River's biological
integrity. (Id.). The City was only partially
responsible for the discharges, and it had already developed
plans to significantly reduce the discharges before trial.
(Id. at 15).
of these reasons and others, the Court declined to award
Kleinman the only relief he asked for at trial-an injunction
giving his chosen representative oversight of the City's
planned channel work. (Tr., Dkt. 104, at 99:9-100:22).
Instead, the Court ordered the relief required by the CWA-a
civil penalty-but only in a nominal amount equivalent to the
maximum penalty for one day's violation. 33 U.S.C. §
1319(d); (Find. Fact & Concl. Law, Dkt. 107, at 13-16
(imposing a “nominal penalty”)). Kleinman's
victory is de minimis-he vindicated a personal
interest, was denied the injunctive relief he sought, and
secured only a nominal civil penalty commensurate with the
limited seriousness of the City's violation. Given the
limited nature of the relief Kleinman obtained and because
this litigation tended to serve his private interests rather
than the public interests contemplated by the statute, it is
appropriate to skip the usual complexities of determining an
appropriate fee. A nominal fee is appropriate in light of
Kleinman's nominal success. The Court will award Kleinman
attorney's fees in the amount of $5, 451-approximately
five percent of his total attorney's and expert fees.
he is a prevailing party, Kleinman is eligible to recover his
costs from the City. Fed.R.Civ.P. 54(d)(1); see also
Choate v. Potter, 349 Fed.Appx. 927, 930 (5th Cir. 2009)
(“Rule 54(d)(1) carries a strong presumption that the
prevailing party will be awarded costs.”). Taxable
costs include: (1) fees of the clerk and marshal; (2) fees
for transcripts; (3) fees for printing and witnesses; (4)
fees for copies of materials used in the case; (5) docket
fees; and (6) compensation of court-appointed experts. 28
U.S.C. § 1920. Unless an expert is court-appointed, a
court may not tax as costs expert fees in excess of the
$40-per-day limited set out in 28 U.S.C. § 1821(2)(b).
See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482
U.S. 437, 442 (1987); see also Tyler v. Union Oil Co. of
California, 304 F.3d 379, 404 (5th Cir. 2002)
(“[E]xpert witness fees in excess of the standard
witness per diem and travel allowances cannot be taxed in the
absence of express statutory authority to the
initially requested court costs in the amount of $1, 972.55,
(Mot. Att'y Fees Ex. E, Dkt. 109-1, at 55), but agrees
with the City's request for a downward adjustment of $1,
019.85 based on depositions that did not take place. (Reply,
Dkt. 112, at 3-4). Based on a review of Kleinman's
expenses, (Mot. Att'y Fees Ex. A, Dkt. 109-1, at 9-49),
and accounting for the agreed ...