from their other claims amounted to independent claims that stood
alone under the CWA and the APA. NRDC III, 93 F. Supp.2d at 561.
The Court dismissed these claims holding that "the sum of
plaintiffs' unsuccessful claims is itself an unsuccessful claim."
Id. These claims were based in large part on the same
underlying facts and legal theories as Claim Ten and are
intertwined with Claim Ten.
The Court declines to reduce the loadstar hours any further due
to the plaintiffs failure to prevail on Claims Eleven through
Thirteen. In cases with interrelated claims, where "a plaintiff
has obtained excellent results, . . . the fee award should not be
reduced simply because the plaintiff failed to prevail on every
contention raised in the lawsuit." Hensley, 461 U.S. at 435,
103 S.Ct. 1933. As discussed above, with the final judgment on
Claim Ten in plaintiffs' favor, the Court ordered the EPA to take
action on TMDLs for ten reservoirs, which includes "5 of the 6
large West-of-Hudson reservoirs, which collectively supply on
average 90% of the City's daily water supply." Izeman Affidavit.
See also Plaintiffs' Memo at 4. As the objective of the suit
was to protect the drinking water for the residents of New York
City, these results are "excellent."
In sum, the Court finds that unsuccessful Claims One through
Four, Six, and Seven, which constituted "Phase I" of this
litigation, are unrelated to successful Claim Ten. Therefore, no
fees may be awarded based on hours associated with these claims.
Plaintiffs did not seek attorneys' fees for time spent on Claims
Five, Eight, and Nine. Claims Ten through Thirteen, which
constituted the claims within "Phase II" of the litigation for
which plaintiffs are seeking fees, are intertwined. Given the
excellent results NRDC achieved in Phase II, the Court will award
a loadstar amount for all hours reasonably expended within Phase
II of this litigation for which the plaintiffs are seeking fees.
This brings Mr. Goldstein's hours to 8.75 hours in 1997, 40.75 in
1998, 79.5 in 1999, and .25 in 2000. This brings Mr. Izeman's
hours to 74.75 in 1997, 211.25 in 1998, 259 in 1999, and 58.5 in
2. Hours Not Reasonably Expended
The Court must "exclude from this initial fee calculation hours
that were not `reasonably expended.'" Hensley, 461 U.S. at 434,
103 S.Ct. 1933 (quoting S.Rep. No. 94-1011, p. 6 (1976)). Hours
that are not reasonably expended include hours that are
"excessive, redundant, or otherwise unnecessary." Id. at 434,
103 S.Ct. 1933. See also LeBlanc-Sternberg, 143 F.3d at 764
(Court should not include hours that are "excessive or
duplicative"). Both NRDC attorneys, Eric A. Goldstein and Mark A.
Izeman submitted detailed time sheets and deducted ten percent of
their total hours for any possible duplication or inefficiency.
The Court finds that neither lawyer's time sheets reflect any
additional unreasonable duplication, overstaffing, or unnecessary
B. Hourly Rates
The hourly rate used to determine the loadstar should be based
on "prevailing market rates." Blum v. Stenson, 465 U.S. 886,
895, 104 S.Ct. 1541, 79 L.Ed.2d 891 (1984). "The loadstar figure
should be in line with those rates prevailing in the community
for similar services by lawyers of reasonably comparable skill,
experience, and reputation," Luciano v. Olsten Corp.,
109 F.3d 111, 115 (2d Cir. 1997), "regardless of whether plaintiff is
represented by private or nonprofit counsel." Blum, 465 U.S. at
895, 104 S.Ct. 1541. The Court's discretion in determining the
loadstar rate when plaintiff is represented by nonprofit counsel
"must be exercised on the basis of rates charged to clients of
private law firms." Miele v. New York State Teamsters Conference
Pension & Retirement Fund, 831 F.2d 407, 409 (2d Cir. 1987).
Plaintiffs requested different rates for each year of the
litigation. See Affidavit
of Stephen L. Kass, Esq., sworn to on June 28, 2000 [hereinafter,
"Kass I"] at p. 11. However, the Supreme Court has instructed
that the hourly rate used should be based on "current rates,
rather than historical rates" so as to "compensate for the delay
in payment." Missouri v. Jenkins, 491 U.S. 274, 283-84, 109
S.Ct. 2463, 105 L.Ed.2d 229 (1989). Therefore, the Court will
assign each lawyer one hourly rate using current market rates.
Because this action took place in the Southern District of New
York, the market rates the Court will use are those of Manhattan
lawyers with comparable skill and experience.
The two NRDC attorneys that worked on this litigation are Mr.
Goldstein and Mr. Izeman. See Kass I at 4. Both attorneys
displayed a high skill level in their submissions to the Court.
Mr. Goldstein submitted an impressive resume, listing numerous
published articles and teaching positions as well as cases on
which he worked. See Kass I, Exhibit F. Mr. Goldstein graduated
from Hofstra University School of Law in 1975 and received his
LL.M. from New York University School of Law in 1980, see id.,
and is "a senior attorney at NRDC." Kass I at 4. Mr. Goldstein
requested an hourly rate of $320 for his work in 1994, increasing
to $410 per hour for his work in 2000. See Kass I at 11.
Mr. Izeman graduated from New York University School of Law in
1992, clerked for the Honorable Raymond J. Pettine, Senior U.S.
District Judge, in Providence, Rhode Island, and has worked at
NRDC since 1993. See Kass I, Exhibit G. Mr. Izeman also
submitted an impressive resume listing various articles he has
written. Mr. Izeman requested a rate of $120 for his work in
1994, increasing to $300 per hour for his work in 2000. See
Kass I at 11.
In support of their requested hourly rates, plaintiffs
submitted National Law Journal surveys of billing rates
nationwide from 1994 through 1999. See Kass I, Exhibit J.
Plaintiffs then averaged the partner and associate hourly billing
rates for the New York law firms included in the survey. The
December of 1999 survey shows average partner rates as ranging
between $296 and $478 and the average associate rates as ranging
between $138 and $326. See id. However, the survey only
included large law firms. In fact, only one of the twelve New
York firms surveyed in 1999 has less than 200 attorneys. See
id. The Court declines to use the rates of large New York law
firms and will instead look to current small and mid-sized firm
rates, as has been approved in this Circuit. See Chambless v.
Masters, Mates & Pilots Pension Plan, 885 F.2d 1053, 1058 (2d
Cir. 1989) (affirming the reference to small and mid-sized firms
for lodestar calculation); see also Gavin-Mouklas v. Information
Builders, Inc., 1999 WL 728636 *5 (S.D.N.Y. Sept.17, 1999).
Partially offsetting the difference between large firms' billing
rates in 1999 and small to mid-sized firms' billing rates today
is the fact that most Manhattan law firms have raised billing
rates since the 1999 survey was published. As the plaintiffs'
evidence regarding prevailing rates is inadequate, the Court will
"rely in part on the judge's own knowledge of private firm hourly
rates in the community," as is common practice in this Circuit.
Miele, 831 F.2d at 409.
Using current market rates, the Court determines that Mr.
Goldstein, as a senior partner equivalent at a small to mid-sized
firm, will be compensated at the rate of $300 per hour. The Court
further determines that Mr. Izeman, as a senior associate
equivalent at a small to mid-sized firm, will be compensated at
the rate of $225 per hour. Therefore, plaintiffs are awarded
$174,562.50 for time spent by Mr. Goldstein and Mr. Izeman in the
course of the underlying litigation.*fn2
C. Fees for Fees Request
NRDC requested $42,870.25 for hours spent by Carter, Ledyard
and Milburn, a law firm that NRDC hired exclusively for the fee
application. Although "[a] request for attorney's fees should not
result in a second major litigation," Hensley, 461 U.S. at 437,
103 S.Ct. 1933, "[t]he fee application is a necessary part of the
award of attorney's fees. If the original award is warranted, . .
. a reasonable amount should be granted for time spent in
applying for the award." Donovan v. CSEA Local Union 1000,
American Federation of State, County and Municipal Employees,
AFL-CIO, 784 F.2d 98, 106 (2d Cir. 1986).
NRDC claimed 124.65 hours for Carter, Ledyard and Milburn's
work on the fee application. These hours represent 14.5 percent
of the total time compensated. "The Second Circuit has upheld fee
awards where the time spent on the fee application was up to 24%
of the total time claimed . . . [and][o]ther courts within this
Circuit have awarded fee application awards in the range of 8 to
24 percent of the total time claimed." Davis v. City of New
Rochelle, N.Y., 156 F.R.D. 549, 561 (S.D.N.Y. 1994) (citations
omitted). The number of hours spent by Carter, Ledyard and
Milburn on the fee application is within the normal acceptable
realm and is reasonable.
Founded in 1854, Carter, Ledyard and Milburn is one of the
oldest firms in the United States, and its lawyers are held in
high esteem in the legal community. With over one hundred
lawyers, Carter, Ledyard and Milburn is a mid-sized to large firm
in Manhattan, and has a broad general practice. The two attorneys
from Carter, Ledyard, and Milburn who worked on the fee
application are Stephan L. Kass and Jean M. McCarroll. Both
attorneys displayed a high skill level in their submissions to
the Court, and both submitted impressive resumes. Mr. Kass
graduated Cum Laude from Harvard Law School in 1964 and is a
partner at Carter, Ledyard and Milburn in New York. Ms. McCarroll
graduated from New York University School of Law in 1979 and is
Counsel at Carter, Ledyard and Milburn. NRDC requested a billing
rate of $460 per hour for Mr. Kass and $335 per hour for Ms.
McCarroll. Using current market rates, the Court determines that
Mr. Kass will be compensated at the rate of $350 per hour. The
Court further determines that Ms. McCarroll will be compensated
at the rate of $290 per hour. Therefore, plaintiffs are awarded
$36,682.50 for time spent on the fee application.*fn3
NRDC requested $10,487.71 in expenses. See Affidavit of
Stephen L. Kass, Esq., sworn to on July 25, 2000. "Attorney's
fees awards include those reasonable out-of-pocket expenses
incurred by attorneys and ordinarily charged to their clients."
LeBlanc-Sternberg, 143 F.3d at 763 (quoting U.S. Football
League v. National Football League, 887 F.2d 408, 416 (2d Cir.
1989)). These recoverable expenses include "postage,
photocopying, travel, and telephone costs." Aston v. Secretary
of Health and Human Services, 808 F.2d 9, 12 (2d Cir. 1986);
see also Kuzma v. I.R.S., 821 F.2d 930, 933-34 (2d Cir. 1987)
("photocopying, travel, and telephone costs recoverable"). NRDC's
expense reports reflect that all of the requested expenses fall
into recoverable categories. The Court further finds that these
expenses are reasonable given the length and complexity of the
litigation and NRDC's degree of success. Therefore, plaintiffs
are awarded $10,487.71 in expenses.
Plaintiffs are the prevailing party in this litigation, and the
defendants are hereby
ordered to pay the plaintiffs $221,732.71 in attorneys' fees and