IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

BAY VIEW HUNTERS POINT
COMMUNITY ADVOCATES, et al.,

Plaintiffs,

v.

METROPOLITAN
TRANSPORTATION
COMMISSION, et al.,

Defendants.

NO. C01-0750 TEH

FILED
2004 FEB -2 PM 2:57
RICHARD W. WIEKING
CLERK
U.S. DISTRICT COURT
NO. DIST OF CA


ORDER AWARDING
ATTORNEYS’ FEES AND
COSTS



This matter came before the Court on Monday, September 22, 2003, on Plaintiffs' Motion for Award of Attorneys' Fees and Costs. After careful consideration of the parties' written and oral arguments, supporting documentation, and the record herein, the Court GRANTS IN PART and DENIES IN PART Plaintiffs' motion as discussed below.


I. BACKGROUND

The history of this case has been well-documented in the Court's prior orders. E.g., Bayview Hunters Point Cmty. Advocates v. Metro. Transp. Comm'n, 177 F. Supp. 2d 10 11 (N.D. Cal. 2001) (order imposing liability) [hereinafter Bayview I]; Bayview Hunters Point Cmty. Advocates v. Metro. Transp. Comm 'n, 212 F. Supp. 2d 1156 (N.D. Cal. 2002) (order granting injunctive relief) [hereinafter Bayview II]; Apr. 24, 2003 Order Denying Plaintiffs' Motion for Order to Show Cause Why Defendant MTC Should Not Be Held in Contempt of Court. In brief, Plaintiffs brought this suit on February 21, 2001, to enforce the implementation of Transportation Control Measure 2 ("TCM 2"), which has been part of California's state implementation plan for the Clean Air Act since 1982. On November 9, 2001, this Court found that TCM 2 required, in part, a 15% increase in regional transit ridership over 1982-83 levels. Bayview I, 177 F. Supp. 2d at 1026-28. The Court further held Defendants Metropolitan Transportation Commission ("MTC") and San Francisco Municipal Railway ("MUNI") liable for failing to implement this portion of TCM 2. Id. at 1031-32. After the liability ruling, Plaintiffs settled their claims against MUNI but were unable to reach agreement with MTC. Bayview II, 212 F. Supp. 2d at 1159. On July 19, 2002, the Court granted injunctive relief against MTC. Id. at 1170-71 (detailing terms of the injunction). 1 Plaintiffs and MTC subsequently settled Plaintiffs' claim for civil penalties, and Plaintiffs now bring this motion for attorneys' fees and costs.

II. DISCUSSION

The citizen suit provision of the Clean Air Act, the statute under which Plaintiffs brought this action, provides that a court "may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such an award is appropriate." 42 U.S.C. § 7604(d) (2003). "An award of attorneys' fees is 'appropriate' where [plaintiffs] have: (1) attained some success on the merits; and (2) contributed substantially to the goals of the Clean Air Act in doing so." W. States Petroleum Ass'n v. Envtl. Prot. Agency, 87 F.3d 280, 286 (9th Cir. 1996). MTC does not dispute that Plaintiffs are entitled to recover attorneys' fees and costs under this provision, and the Court finds an award of fees and costs to be appropriate.

To determine a reasonable attorneys' fee, the Court must multiply the number of hours reasonably expended on the litigation by a reasonable hourly rate. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). There is a "strong presumption" that this "lodestar" figure constitutes a reasonable attorneys' fee because most relevant considerations are subsumed within this initial calculation. Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, 478 U.S. 568, 564-65 (1986). Only in "rare" or "exceptional" cases will adjustment of the lodestar be appropriate. Id. at 565. In this ease, neither party argues that such an adjustment is warranted, and the Court therefore will base its award of attorneys' fees on the lodestar figure.

A. Reasonable Hourly Rates

The Court finds ample evidence – including MTC's non-opposition to this point - that Plaintiffs' claimed hourly rates are reasonable. Thus, fees will be awarded based on the following rates:

Timekeeper/Reasonable Hourly Rate

Alan Ramo
$425

Deborah Reames
$400

Marc Chytilo
$400

Helen Kang
$400

Richard Drury
$375

Anne Harper
$350

Bruce Nilles
$275

Susan Britton
$275

Laura Hoehn
$260

Suma Peesapati
$220

Greg Loarie 2
$210

Laura Robb
$195

Research Associates
$125

Paralegals
$105

Law Clerks
$100


B. Reasonable Number of Hours

In addition to establishing a reasonable hourly rate, the fee applicant also "bears the burden of...documenting the appropriate hours expended." Hensley, 461 U.S. at 437. As part of that burden, the applicant should exercise "billing judgment" regarding the number of hours worked and also provide the district court with billing records supporting the time claimed. Id. at 433, 437. The fee applicant "is not required to record in great detail how each minute of his time was expended," but "at least counsel should identify the general subject matter of his time expenditures." Id. at 437 n.12; see also Fischer v. SJB P.D. Inc., 214 F.3d 1115, 1121 (9th Cir. 2000) (the fee applicant "can meet his burden - although just barely - by simply listing his hours and 'identify[ing] the general subject matter of his time expenditures’" (citations omitted)). A court may reduce the fee award if the applicant's "documentation of hours is inadequate." Hensley, 461 U.S. at 433.

Once the fee applicant satisfies its obligation to document the hours expended, the burden shifts to the party opposing the fee request. To meet its burden of rebuttal, the opposing party must submit "evidence to the district court challenging the accuracy and reasonableness of the hours charged or the facts asserted by the prevailing party in its submitted affidavits." Gates v. Deukmejian, 987 F.2d 1392, 1397-98 (9th Cir. 1992). "Conclusory and unsubstantiated objections are not sufficient to warrant a reduction in fees." Lucas v. White, 63 F. Supp. 2d 1046, 1057-58 (N.D. Cal. 1999).

Here, Plaintiffs claim $63,823.75 (214.78 hours) for work on settling the civil penalties claim and $931,681.17 (3666.47 hours) for work on the remaining merits portions of this case. 3 In addition, Plaintiffs claim $262,261.60 (1066.27 hours) for work on this fees motion - so-called "fees on fees." 4 Through the exercise of billing judgment, Plaintiffs excluded $101,990.75 (340 hours) from their merits fees request and $20,353.15 (84.77 hours) from their fees on fees request. This represents a 9.3% reduction of Plaintiffs' merits fees request and a 7.2% reduction of their fees on fees request.

MTC's objections to Plaintiffs' claimed number of hours may be divided into two categories. First, MTC disputes whether certain types of work claimed by Plaintiffs are compensable. Second, MTC argues that the number of hours Plaintiffs claim both on the merits portion of this lawsuit and on the fees motion - must be reduced because the number of hours claimed is unreasonable. The Court addresses each set of arguments in turn.

1. Disputed Types of Work

MTC argues that Plaintiffs are not entitled to recover fees for certain types of work claimed. In their reply, Plaintiffs withdrew their request for fees as to three of these disputed types of work: (1) 3.20 hours spent on political lobbying; (2) 6.83 hours spent on what MTC termed "client development and client relations work"; and (3) 2.16 hours spent unsuccessfully petitioning the United States Environmental Protection Agency for a formal finding that TCM 2 had not been implemented. 5 The Court now addresses the parties' remaining disputes.

a. Time Spent on Press Activities

Plaintiffs claim $15,290.25 for 69.13 hours spent on press and public relations work. The parties correctly agree that Plaintiffs may only recover for "the giving of press conferences and performance of lobbying and public relations work" that is "directly and intimately related to the successful representation of [the] client." Davis v. City & County of San Francisco, 976 F.2d 1536, 1545 (9th Cir. 1992), vacated in part on other grounds, 984 F.2d 345 (9th Cir. 1993). The dispute centers on whether Plaintiffs have met this standard.

Upon review of the case law and based on its familiarity with this litigation, the Court agrees with MTC that Plaintiffs have failed to meet the standard set forth in Davis. Plaintiffs are not entitled to recover fees "for public relations work which did not contribute, directly and substantially, to the attainment of [Plaintiffs'] litigation goals." Id. While the Court has no doubt that Plaintiffs' press activities served to educate the general public about this litigation, and may even have encouraged the public to become more involved in MTC's planning process or to take public transit more frequently, this does not equate to a finding that such work was "directly and substantially" or "directly and intimately" related to Plaintiffs' litigation goals. 6

Plaintiffs cite Davis and United States v. City of San Diego, 18 F. Supp. 2d 1090, 1099 (S.D. Cal. 1998), to support their request, but these cases are easily distinguishable. In Davis, the court held that plaintiffs could recover for public relations work intended to lobby the San Francisco Board of Supervisors, whose support was "vital" to the ultimate resolution of the case through a consent decree. Davis, 976 F.2d at 1545; see also id. (suggesting that time spent on "television appearances made by [plaintiffs'] counsel after the signing of the consent decree" was not compensable). Similarly, in United States v. City of San Diego, 18 F. Supp. 2d at 1100, the court awarded fees to intervenors for time spent lobbying to resolve a waiver issue that "might otherwise have prevented the settlement." In this case, Plaintiffs cannot show such a direct or intimate connection between their press activities and achieving success on the merits of their case. As a result, Plaintiffs' time spent on press activities is non-compensable, and their fee request shall accordingly be reduced by $15,290.25.

b. Time Related to MUNI Settlement

For the most part, Plaintiffs correctly acknowledge that they cannot claim fees for time related to the settlements they reached with AC Transit and MUNI. However, Plaintiffs assert that they are entitled to recover $240.00 for 0.60 hour spent by Deborah Reames on "Telephone conference with A Harper, then telephone conference with A Ramo regarding D Margolis disclosing settlement to MTC; thinking regarding the same." Reames Reply Decl. ¶ 64; Ex. 6 to Greenfield Decl. at 210 (entry #683). The Court is not persuaded by Plaintiffs' argument. Plaintiffs' consideration of the MUNI settlement's disclosure to MTC does not change the fact that Plaintiffs' claimed time relates solely to the settlement. Consequently, MTC should not have to reimburse Plaintiffs for the claimed 0.60 hour spent on this task, and the Court accordingly reduces Plaintiffs' fee request by $240.00.

c. Time Related to MTC's Administrative Processes

MTC next contends that Plaintiffs are not entitled to their full claimed amount $15,745.75 for 56.28 hours - for time relating to participation in MTC's administrative processes. MTC does not argue that Plaintiffs should be awarded no fees for this work; instead, MTC asserts that "the advocacy that took place was clearly work that the plaintiffs would have done anyway; thus this work served two purposes," and Plaintiffs should therefore only be compensated for half of the time claimed. Opp'n at 14. The Court, however, is persuaded that all of the disputed time was directly related to this litigation and, absent the litigation, Plaintiffs' counsel would not have participated in the proceedings. Reames Reply Decl. ¶¶ 71-74 (noting, for example, that nearly all of the disputed hours were "expended by Earthjustice, which had not been involved in MTC administrative processes prior to this litigation, at least not for many years" and describing the relationship between the claimed hours and this litigation); see also Ex. 6 to Greenfield Decl. at 274–78 (itemized listing of hours that, upon the Court's review, relate specifically to this litigation and not general public advocacy work). 7 Accordingly, Plaintiffs' fee award for these disputed hours shall not be reduced by 50%, and Plaintiffs shall receive the full claimed amount of $15,745.75 for these time entries.

d. Time Spent Monitoring MTC's Compliance

MTC does not contest Plaintiffs' entitlement to fees for work spent on monitoring MTC's compliance with the injunctive relief ordered by the Court. However, MTC objects to a fee award for time spent preparing and arguing Plaintiffs' unsuccessful motion for contempt. Plaintiffs have represented to the Court that they have not included any such time in their fee request. Reames Decl. ¶ 77; Reames Reply Decl. ¶ 76 (noting that Plaintiffs "cut off the time entries included in their merits fees claim at the very meeting where Bayview Advocates determined to proceed with the [contempt] motion, excluding all work in briefing and arguing that motion").

The Court's independent review of the disputed time entries - 52.81 hours, resulting in a claim for $10,349.00- supports Plaintiffs' representation. See Ex. 6 to Greenfield Decl. at 211-18. While Plaintiffs have claimed time for analyzing the Regional Transportation Plan ("RTP") amendment required by this Court's remedies order, as well as time for considering a potential challenge to the amendment ultimately adopted by MTC, the Court finds such time to be part of Plaintiffs' compensable monitoring tasks. MTC suggests that any work done by Plaintiffs after the final amendment was adopted "is not work monitoring MTC's compliance; it is work on a prospective challenge to MTC's compliance." Opp'n at 15. However, the Court's remedies order required more than simply the adoption of an RTP amendment:



MTC shall amend the RTP to include a section specifying how it will achieve full implementation of TCM 2. In this amendment, MTC shall identify and describe all projects it will fund as part of its strategy for achieving the required ridership increase. Each project description must include an implementation schedule, estimated costs, and expected ridership gains, if any of these projects are not already in the TIP, then MTC must further amend the TIP as necessary to allow the projects' finding to proceed.



Bayview II, 212 F. Supp. 2d at 1170-71. Given these restrictions, Plaintiffs would have been remiss not to have analyzed the adopted RTP amendment as part of its monitoring activities, or not to have considered remedies for potential areas of non-compliance. MTC's argument that the disputed hours should be disallowed is therefore unpersuasive.

e. Allegedly Vague and Unintelligible Time Entries

MTC also asserts that Plaintiffs' fee award should be reduced by $6,413.50 for entries that MTC contends are too vague and unintelligible to determine whether they are reasonable. Although the challenged entries are certainly no model of clarity, see Ex. 6 to Greenfield Decl. at 263-64, Plaintiffs' explanation on reply, Attach. 1 to Reames Reply Decl., is more than sufficient to allow the Court to determine whether the time claimed is reasonable. On review of these entries, the Court finds all of them to be compensable except for three: two entries for a combined 0.40 hour by Kirsten Tobey on July 30, 2002, for responding to a "transit activist" about the case, and one entry for 0.42 hour by Rachel Pelc on August 7, 2002, for "responding to an e-mailed request from EPA for information regarding the status of this case." Id. (entries # 3014, 3015, and 3021). These entries are public relations activities not directly and intimately related to the litigation. Consequently, they are non-compensable for the reasons discussed above, and the Court accordingly reduces Plaintiffs' fee request by $102.50. 8

f. Time Spent Exercising Billing Judgment and Preparing Bills

MTC argues that Plaintiffs should be barred from recovering $21,792.75 for 103.73 hours spent reviewing time notes, exercising billing judgment, and preparing tables of time entries for submission in this fees motion. MTC does not dispute Plaintiffs' right to recover fees on fees generally; instead, the basis for MTC's specific objection is that fee-paying clients are not billed for time spent preparing bills or exercising billing judgment, and Plaintiffs therefore cannot recover fees for such work. However, MTC's objection is inapposite. Preparing bills for fee-paying clients is distinct from exercising billing judgment and preparing time records to submit to a court as part of a fee request.

Moreover, the Ninth Circuit "has repeatedly held that time spent by counsel in establishing the right to a fee award is compensable." Davis, 976 F.2d at 1544. As part of its burden, a fee applicant must "submit evidence supporting the hours worked and rates claimed." Hensley, 461 U.S. at 433. The applicant must also review its billing records to "make a good faith effort to exclude from a fee request hours that are excessive, redundant, or otherwise unnecessary." Id. at 434. Thus, Plaintiffs' completion of the disputed tasks as part of their fee request is not only reasonable; it is required. Plaintiffs are therefore not barred from recovering fees for these tasks. 9

g. Summary of Deductions for Non-Compensable Tasks

Summarizing the above discussion, the Court reduces Plaintiffs' claimed fee award by a total of $15,290.25 + $240.00 + $102.50 = $15,632.75. All of these deductions apply to Plaintiffs' claimed fees for their work on the liability and remedies stages of this case.

2. Reasonableness of Plaintiffs Claimed Number of Hours

The Court now turns to MTC's objections concerning the reasonableness of the number of hours claimed.

a. Comparison with Time Billed by MTC

First, MTC makes much of its argument that Plaintiffs have billed far more than the 2210 hours billed by MTC's counsel for a fee of approximately $596,000, and that MTC was able to staff the case primarily with only two attorneys and one paralegal. However, as MTC's own proffered fees expert admits, "one can often not simply compare how different sides staff a case (because what they need to do may be quite different)." Greenfield DecI. ¶ 38. While MTC contends that the "enormous disparity in how this case was staffed by the defendant's counsel versus the staffing by plaintiffs' counsel is striking," id., the Court disagrees and finds that the differences are explained by, for example, the nature of litigation work at small, non-profit organizations and the differences between prosecuting and defending a case. See, e.g., Chabner v. United of Omaha Life Ins. Co., No. C95-0447 MHP, 1999 WL 33227443, at *3-4 (N.D. Cal. Oct. 12, 1999). Moreover, some of the difference in the number of hours and number of timekeepers can be explained by Plaintiffs' use of more junior, less-experienced staff to perform tasks at lower rates than the $295 attorney rate charged by MTC. Compare Reames Decl. ¶¶ 20-27 (explaining responsibilities of junior staff) and supra at 3 (listing hourly rates for same, with all but Anne Harper billing at $275 per hour or less) with Cooke Decl. ¶ 11 (explaining that MTC was charged for all attorney time at an hourly rate of $295). Finally, the Court notes that MTC's $596,000 figure fails to consider the hours spent by MTC's general counsel on this litigation. See Chin Decl. ¶ 5 (estimating that, as MTC general counsel, he spent approximately 50 hours on this litigation). Nor does it consider that the $295 "blended" hourly rate charged for all attorney time resulted in "a very substantial discount off [Allen Matkins's] standard rates for MTC." 10 Cooke Decl. ¶ 11. Thus, even if a comparison between Plaintiffs' and MTC's fees were useful, the comparison is not as stark as MTC suggests.

b. Number of Plaintiff Organizations

Throughout its briefing, MTC also repeatedly emphasizes its belief that Plaintiffs overstaffed this case, in part, MTC believes, because seven organizations were unnecessarily included as Plaintiffs. MTC acknowledges the benefits of coalition work in the field of transportation planning but argues that such benefits accrue in the political and administrative arenas, and not in litigation. In particular, MTC contends that a coalition was unnecessary in this case because Plaintiffs cannot point to any position they took that a single Plaintiff organization could not have taken standing alone. However, MTC fails to point to any authority requiring a reduction in fees simply because multiple plaintiffs or multiple plaintiffs' attorneys - were present. To the contrary, as this Court has previously noted, "There is nothing that makes counsel in multi-plaintiff [or] multi-counsel... cases inherently less deserving of fees." Cal. Pub. Interest Research Group v. Shell Oil Co., Nos. C92-4023 TEH, C93-0622 TEH, 1996 WL 33982, at *4 (N.D. Cal. Jan. 23 1996).

Based on the Court's many years of experience with cases concerning environmental regulations, as well as its specific experience with this case, it does not find it unreasonable for Plaintiffs to have included multiple organizations as parties. Plaintiffs' allegations that each organization represented a different constituency with a distinct mission have never been refuted. See Compl. ¶¶ 11 -17. Notably, MTC does not object to Plaintiffs' right to join all organizations as parties in this suit, nor does it elucidate any argument as to why Plaintiffs' inclusion of seven organizations was unreasonable from a strategic point of view. While MTC may be correct that a single Plaintiff organization could have raised the same claims, the Court is not convinced that bringing the suit on behalf of a coalition had no litigation benefits. For example, taking a coalition-based approach likely increased Plaintiffs' settlement prospects. As a result, the Court does not find the number of Plaintiff organizations to be "excessive, redundant, or otherwise unnecessary." Hensley, 461 U.S. at 434 (setting forth the standard for compensable, reasonable hours).

c. Number of Timekeepers

Similarly, the Court does not find the number of timekeepers in this case to be unnecessarily excessive. At no time were all of the timekeepers working on the case simultaneously. Instead, lead Plaintiffs' counsel, Earthjustice, relies on several two-year junior positions and even shorter law-student clerkships, many of which saw turnover during the course of this litigation. 11 Reames Reply Decl. ¶ 7. The Court is satisfied that Plaintiffs' use of multiple timekeepers was not unreasonable, with Ms. Reames taking the role of lead counsel, one other senior attorney serving as lead co-counsel for various stages of the litigation, and junior attorneys, research associates, and law clerks taking on discrete tasks. Reames Decl. ¶ 16-27. The Court is further satisfied that MTC's objections to the number of timekeepers assigned to specific tasks lack merit. 12 Reames Reply Decl. ¶¶ 13-20 (responding specifically to MTC's objections by explaining, for example, that the bulk of time in many of the disputed tasks was recorded by only a few timekeepers; that, in some eases, the number of timekeepers was a result of efficient delegation of assignments to more junior staff; and that each counsel or research associate appearing at the Court's hearings and settlement conferences served a discrete and non-overlapping purpose). For example, while having six or eight people work on a summary judgment motion may seem excessive in the abstract, both the liability and remedies briefing in this ease raised multiple and, as both parties admit, complex - issues, including standing, res judicata, collateral estoppel, and numerous factual and legal issues specifically related to TCM 2. Given the number and complexity of the issues raised, the Court finds that it was not unreasonable for Plaintiffs' counsel to employ multiple timekeepers in a non-duplicative manner for these tasks. See Davis, 976 F.2d at 1544 (holding that the participation of multiple attorneys does not necessarily result in non-compensable duplication of effort).

d. Time Spent on “Internal Communications”

However, the Court agrees with MTC that the time claimed by Plaintiffs for so-called "internal communications" is excessive, though the Court does not find MTC's 50% across-the-board reduction to be warranted. As calculated by MTC, Plaintiffs counsel claim 985.12 hours, for a fee of $300,715.45, for time spent communicating with clients and with each other. 13 Plaintiffs contend, without dispute by MTC, that 24.22% of the time in this category was spent on client communication and most of the remainder was spent on meeting with junior staff or other senior staff to delegate tasks and follow-up on assignments. Reames Reply Decl. ¶¶ 25–27. Only 40.33 hours were spent on calls or meetings with three or four of the four offices representing Plaintiffs. Id. ¶ 26.

Upon review of the record, the Court finds the time spent on client communication to be fully compensable. As discussed above, the Court does not find the number of Plaintiff organizations in this case to be a basis for reducing Plaintiffs' fee award. In addition, Plaintiffs' counsel was entitled - and, under ethical obligations, required to communicate with their clients throughout this litigation, and the time claimed for this task does not appear excessive to the Court.

In addition, the Court finds the 40.33 hours claimed for team-wide strategy meetings to be not only reasonable, but on the low side given the nature of this case. Thus, these hours are also fully compensable.

That leaves 706.19 hours claimed by Plaintiffs' counsel for time spent conferring among themselves in smaller groups. Plaintiffs explain that the bulk of this time was spent discussing discrete tasks that lead counsel delegated to junior staff. However, even considering that delegating tasks to junior staff may be cost effective, the Court finds the number of hours claimed in this area to be excessive. Plaintiffs had every right to use junior staff, and to use the number of junior staff that they did, but the delegation of tasks and supervision of assignments must still be done efficiently. Similarly, they had every right to associate counsel from different firms, but coordination between counsel must be carefully managed to avoid excessive billing. See Greenfield Decl. ¶ 28 (noting that inefficiencies, including time spent communicating between counsel, inevitably increase when more timekeepers are assigned to a case, and the resulting increase in fees often comes without a corresponding increase in quality of work). Based on these considerations, as well as on the Court's experience in reviewing fee requests, the Court's familiarity with the issues in this case, and the Court's review of Plaintiffs' billing records, the Court concludes that the 706.19 hours claimed is unreasonable. Instead, the Court finds 400 hours to be a reasonable estimate of the time that Plaintiffs' counsel should have spent conferring with each other if such time were efficiently and carefully managed.

In light of the above discussion, the Court reduces Plaintiffs' claimed fee award by 306.19 hours, for a total fee reduction of $93,466.85. 14 This amounts to a 31.08% reduction, which the Court applies proportionally across all stages of the case. Thus, Plaintiffs' claimed $22,036.00 for internal communications on civil penalties is reduced by $6,849.12, and Plaintiffs' claimed $39,480.50 for internal communications on the fees motion is reduced by $12,271.13. The remainder of the $93,466.85, which amounts to $74,346.60, shall be deducted from Plaintiffs' claimed fees on the liability and remedies stages of this case.

e. Objections to Merits Fees
(1) Specific Research Tasks

MTC objects to the amount of time spent on several specific research projects. The Court agrees that the time claimed for the following tasks is excessive: 63 hours ($6,300.00) for research on the Tenth Amendment; 28 hours ($2,800.00) for research on motions to stay after an injunction is entered; and 24 hours ($2,400.00) for research on changing parties and attorneys from those specified in the notice of intent to sue. See Ex. 4 to Greenfield Decl. (entries for law clerks Braly, Cohen, and Tognazinni). Of these three topics, only the third was ever actually an issue in this case, but, as Plaintiffs argue, they are entitled to compensation for time spent on anticipatory research as well. This is not to say that a plaintiff's counsel will always be entitled to recover fees for researching any potential issue that counsel believes might arise during the litigation. However, the two issues in question here - Tenth Amendment sovereign immunity and a motion to stay - are significant issues that Plaintiffs reasonably anticipated MTC might raise. The fact that MTC did not end up raising either issue does not bar Plaintiffs from recovering fees for time spent researching these areas.

However, upon review of the record, and given this Court's experience with legal research, the Court finds that the amount of time Plaintiffs claim for research in these three areas is excessive and unreasonable. For example, while it was certainly reasonable for Plaintiffs to research the Tenth Amendment, it was unreasonable to have one person spend over a week and a half researching and drafting a memorandum on that issue. The Court finds a more reasonable amount of time to be 24 hours, the equivalent of three frill-time days. Similarly, the Court finds that 12 hours each is a more reasonable amount of time for research on motions to stay and on changing parties and attorneys from those specified in the notice of intent to sue. Accordingly, the Court awards Plaintiffs only $4,800.00 for research in these three areas, thereby reducing Plaintiffs' requested award by $6,700.00.

The Court rejects MTC's arguments regarding other research tasks. For instance, the Court finds that, given the complexity of the issues and the use of junior staff to perform most of the research, Plaintiffs' use of six timekeepers to bill 73.22 hours on standing, as well as their use of ten timekeepers to bill 82 hours for research on civil penalties issues, was not excessive or unreasonable. In addition, MTC argues that Plaintiffs appear to have prepared many written memoranda summarizing research findings, and that a paying client would never agree to pay the extra costs associated with preparing detailed memoranda. Plaintiffs adequately rebut this, however, by explaining that the memoranda were not meant to be refined pieces of scholarly research but, instead, were quick memos to memorialize the research completed. Reames Reply Decl. ¶ 29. Thus, the Court does not find any further deductions to Plaintiffs' merits fee award to be appropriate based on MTC's objections to specific research tasks.

(2) Prefiling Activities

MTC also objects to the amount of time, which it calculates as nearly 700 hours recorded by twelve timekeepers, claimed by Plaintiffs prior to the filing of the complaint. However, MTC's objections appear to rest on its contentions that Plaintiffs included too many organizations and too many timekeepers - arguments that this Court has already rejected. Moreover, MTC points to no specific time entries that it contests as excessive, except for the 24 hours of research on the notice to sue issue and time spent on internal communications - both areas that the Court has already addressed. The remaining time claimed by Plaintiffs for prefiling activities does not appear unreasonable, and the Court is not persuaded by MTC's conclusory objections to the contrary. Consequently, the Court does not find it appropriate to further reduce the time claimed by Plaintiffs' for their prefiling activities.

f. Summary of Merits Fees Awarded

Summarizing the deductions the Court has found appropriate to Plaintiffs' claimed merits fees, the Court deducts $6,849.12 from Plaintiffs' claimed fees for the civil penalties phase of this case for excessive internal communications time claimed. Plaintiffs claimed $63,823.75 for this portion of the case, and the Court therefore awards $56,974.63.

From Plaintiffs' remaining merits fees (i.e., fees for the liability and remedies stages of this case), the Court deducts $15,632.75 for claimed time spent on noncompensable tasks, $6,700 for excessive research time claimed, and $74,346.60 for excessive internal communications time claimed, for a total reduction of $96,679.35. Plaintiffs claimed $931,681.17 for work on these areas of the case, and the Court therefore awards $835,001.82.

g. Objections to Fees on Fees

The Court now turns to Plaintiffs' claimed 1066.27 hours, for a fee of $262,261.60, for work on their fee request. As a preliminary matter, the Court rejects MTC's characterization of the simplicity of this motion. Although MTC correctly points out that Plaintiffs' fee request does not involve complicating factors such as apportionment of fees among successful and unsuccessful claims, and that MTC ultimately did not challenge Plaintiffs' entitlement to fees or requested hourly rates, MTC also did not stipulate to Plaintiffs' entitlement or requested hourly rates until their opposition to Plaintiffs fees motion. 15 Thus, Plaintiffs were obligated to research and draft declarations and pleadings related to the now uncontested issues, and they are entitled to recover reasonable fees for all of that work. Davis, 976 F.2d at 1544 (holding that "time spent by counsel in establishing the right to a fee award is compensable"). Because MTC raised its non-opposition to oft-contested issues for the first time in its opposition papers, MTC must bear some responsibility for increasing the amount of fees on fees Plaintiffs claim - and to which Plaintiffs are entitled. Moreover, MTC has vigorously litigated this case at every step of the way, and so Plaintiffs reasonably (and correctly, in most cases) anticipated that MTC would also vigorously litigate Plaintiffs' fee request.

However, notwithstanding that Plaintiffs have already excluded 84.77 hours, amounting to approximately $20,353.15, through their exercise of billing judgment, the Court finds the amount of claimed fees on fees to be excessive and unreasonable. As a result, the Court reduces Plaintiffs' fees on fees based on the following meritorious objections raised by MTC and the Court's own review of Plaintiffs' billing records.

First, the Court notes that Plaintiffs have deleted the duplicate entries identified by MTC. Thus, duplicate entries are no longer an issue here.

Second, as discussed previously, the Court finds it appropriate to reduce the amount of time claimed by Plaintiffs' for internal communications. The amount of the deduction applicable to Plaintiffs' claimed fees on fees is $12,271.13. Supra at 14-16.

Third, although the Court disagrees with MTC that time spent reviewing time records and compiling bills is not compensable, supra at 10, the Court finds that 103.73 hours is an unreasonable amount of time to have spent on this task. Based on the Court's experience with fees motions, including experience with motions involving voluminous billing records, the Court finds that reducing the amount claimed by 50% would reflect a more reasonable estimate of time required to complete these tasks. A 50% reduction would still amount to more than six days of full-time work, which should be more than enough time to exercise billing judgment and prepare bills in a case of this magnitude. Accordingly, Plaintiffs' claimed $21,792.75 fee for these tasks is reduced by half, or $10,896.37.

Fourth, spending 13.59 hours researching the compensability of travel time is excessive and unreasonable. A more reasonable amount of time to have spent on this already well-researched issue - a point Plaintiffs do not contest - is, at most, 4 hours. All of the time claimed for this task was billed at $195 per hour. Accordingly, Plaintiffs' fee request is further reduced by (13.59 - 4.00) x $195 $1,870.05.

Fifth, the Court agrees with MTC that it was excessive and unreasonable for Plaintiffs to have researched rates claimed by the attorneys in the PG&E bankruptcy litigation. As part of their fee application, Plaintiffs submitted a series of affidavits from local attorneys justifying Plaintiffs' claimed hourly rates, in addition to preparing an affidavit from Richard Pearl, an attorneys' fees specialist, and compiling tables of hourly rates recently awarded to some of Plaintiffs' counsel by other courts. Given this body of evidence to support Plaintiffs' claim, it was overkill for Plaintiffs to have delved even deeper by exploring the PG&E bankruptcy rates. Thus, the Court finds such time to be noncompensable and therefore reduces Plaintiffs' fee request by an additional $3,015.00. 16

Finally, upon the Court's review of Plaintiffs' billing records, the Court finds the time Plaintiffs spent on the reply brief to their fees motion to be excessive. Plaintiffs claim 372.46 hours for their work on the reply brief- the equivalent of more than nine people working full-time on the brief for a week, 65 hours more than Plaintiffs claim for their work on the opening fees brief, and, given the Court's deductions, well over 100 hours more than Plaintiffs reasonably should have claimed for their work on the opening fees brief. The time Plaintiffs claim for the reply brief is excessive by any standard, and the Court finds it appropriate to award Plaintiffs for only 160 of the 372.46 hours claimed. Admittedly, MTC's opposition to Plaintiffs' fees motion required a not insignificant response from Plaintiffs. However, allowing 160 hours is the equivalent of four timekeepers working on the motion full-time for a week - which is a reasonable, if not generous, estimate of the amount of time necessary to prepare an adequate reply to MTC's opposition. Accordingly, the Court further reduces Plaintiffs award for fees on fees by an additional $48,661.85. 17

In sum, the Court reduces Plaintiffs' claimed fees on fees by the following amount: $12,271.13 + $10,896.37 + $1,870.05 + $3,015.00 + $48,661.85 = $76,714.40. Plaintiffs claimed $262,261.60 for fees on fees, and the Court therefore awards $185,547.20.

C. Costs

Finally, Plaintiffs claim $35,615.65 in costs. MTC does not dispute this amount, which appears reasonable to this Court, and the Court therefore awards Plaintiffs' requested costs in full.

III. CONCLUSION

Accordingly, and good cause appearing, IT IS HEREBY ORDERED that Plaintiffs' Motion for Award of Attorneys' Fees and Costs is GRANTED IN PART and DENIED IN PART consistent with the above discussion. In particular, Defendant MTC shall pay Plaintiffs the following fees and costs within thirty days of the date of this Order:

Fees on Merits (excluding Penalties)
$835,001.82

Fees on Penalties
$56,974.63

Total Merits Fees
$891,976.45

Fees on Fees
$185,547.20

Costs
$35,615.65

TOTAL
$1,113,139.30



IT IS SO ORDERED.

DATED 2/2/04

S/ THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT

rbe

United States District Court
for the Northern District of California
February 2, 2004


* * CERTIFICATE OF SERVICE * *

Case Nurnber:3:0l-cv-00750


Bayview Hunters Poin

vs

Metropolitan Trans

_____________________________


I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California.

That on February 2, 2004, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.


Deborah S. Reames, Esq.
Earthjustice
426 17th St
5th Floor
Oakland, CA 94612-2820

Anne C Harper, Esq.
Earthjustice
426 17th St
5th Floor Oakland, CA 94612-2820

Alan Ramo, Esq.
Environmental Law and Justice Clinic
Golden Gate University School of Law
536 Mission St
San Francisco, CA 94105

Helen H. Kang, Esq.
Golden Gate University School of Law
536 Mission St
San Francisco, CA 94105

Richard T. Drury, Esq.
Communities for a Better Communities
1611 Telegraph Ave
Ste 450
Oakland, CA 94612

Marc Chytilo, Esq.
P. O. Box 92233
Santa Barbara, CA 93190

David D. Cooke, Esq.
Allen Matkins Leck Gamble & Mallory LLP
333 Bush St
17th Flr
San Francisco, CA 94104-2806

Francis F. Chin, Esq.
Metropolitan Transportation Commission
Joseph P. Bort MetroCenter
101 Eighth St
3rd Floor
Oakland, CA 94608


Richard W. Wieking, Clerk
BY: _____
Deputy Clerk




(Footnotes)

1
Following a motion for reconsideration brought by MTC, the Court slightly modified MTC's reporting requirements under the injunction. Oct. 21, 2002 Order Granting Def.'s Mot. for Recons.

2
This rate is for time billed by Mr. Loarie as an associate attorney at Earthjustice. Mr. Loarie also worked on this case while he was a law clerk at Earthjustice, and Plaintiffs appropriately claim only the law-clerk hourly rate of $100 for the time Mr. Loarie billed in his earlier capacity.

3
MTC asserts that Plaintiffs only incurred 193.93 hours, for a claimed fee of $54,856, for work on the civil penalties claim, but the parties - unhelpfully - do not address the discrepancy between their calculations. However, MTC does not dispute the amount of Plaintiffs' total merits fees request. Instead, the parties only dispute the apportionment of approximately $9,000 between the liability and remedies phases of the case and the civil penalties phase - a difference that the Court does not find consequential. In the absence of specific objections by MTC to entries that it contends should not have been included as part of the civil penalties phase, the Court uses Plaintiffs' figures for purposes of apportioning the merits fees.

4
Plaintiffs included in this request for fees on fees an estimated 58 hours and $19,600 they anticipated spending on preparing for and attending the hearing. After the hearing, Plaintiffs submitted time records documenting 89.65 hours and $26,909 spent on such work. However, they have not increased their fee request to reflect the actual amount of time spent and instead request only their original estimate. MTC does not contest the reasonableness of the 58 hours and $19,600 claimed.

5
The amounts listed above for Plaintiffs' fee request already reflect these voluntary deductions.

6
Plaintiffs' characterization of their litigation goal - "to clean up the air by moving people out of their cars and on to transit, by providing a safe, reliable, effective and equitable transit system," Reply at 13 - is overbroad. Although this "goal" may have been the ultimate mission behind this litigation, the actual goal of Plaintiffs' suit was to enforce the implementation of TCM 2.

7
MTC offers no evidence to the contrary. The fact that some of the Plaintiff organizations regularly participate in MTC's administrative processes, Chin Decl. ¶ 4, is besides the point. The question is whether Plaintiffs' counsel and not Plaintiffs themselves - would have been involved with these processes in the absence of this litigation.

8
Both Pelc and Tobey are research associates whose reasonable hourly rate is $125.

9
However , as discussed below, infra at 19, the Court finds the number of hours claimed by Plaintiffs for reviewing and preparing bills to be unreasonable, and the Court therefore reduces Plaintiffs' fee award accordingly.

10
At oral argument, David Cooke, counsel for MTC, asserted that MTC's bill for this case would have been $682,000 if Mr. Chin's time were considered and if Allen Matkins had charged market rates.

11
MTC contends that Plaintiffs' counsel must absorb the costs of staff turnover because private law firms routinely absorb such costs. However, MTC provides no evidence that law firms do not bill their clients, for example, for time recorded by staff for reading background material and bringing themselves up to speed on a newly assigned case. In addition, even if such time were not compensable, MTC has failed to identify specific entries in Plaintiffs' billing records that can be attributable solely to bringing a new staff member up to speed.

12
MTC's specific objections to the number of hours spent on certain tasks are addressed below.

13
Plaintiffs contend that MTC misclassified some time as internal communications when that time was spent on other tasks, but they point to only one allegedly erroneous entry (Mr. Chytilo, 01/08/02). Reames Reply Decl. ¶ 25. As to that entry, the Court notes that MTC listed the entire description of work performed, for a total of 9.5 hours, but only classified - correctly - 5.0 hours as time spent on internal communications. Absent any other objections from Plaintiffs, the Court accepts the accuracy of MTC's calculations.

14
To reach this figure, the Court uses the average hourly rate for time claimed in this category: 306.19 x $300,715.45/985.12 $93,466.85.

15
The only agreement clearly noted in the record is that MTC agreed not to contest Plaintiffs’ entitlement to fees for work done on settling the civil penalties issue.

16
Plaintiffs offered this amount at oral argument, without objection from MTC.

17
The Court reduces Plaintiffs' claimed $85,308.25 for work on the fees motion by (372.46 - 160)/372.46, or approximately 57%. Also, the Court's allowance of 160 hours includes time reasonably spent on internal communications, and the Court therefore does not separately reduce the amount of time claimed for internal communications during this portion of the case.