United States District Court, W.D. New York
June 2, 2005.
PRESERVATION COALITION OF ERIE COUNTY, Plaintiff,
FEDERAL TRANSIT ADMINISTRATION, et al. Defendants.
The opinion of the court was delivered by: WILLIAM SKRETNY, District Judge
On June 13, 2001 and February 28, 2002, this Court issued
Decision and Orders finding Plaintiff to be a prevailing party
under the National Historic Preservation Act ("NHPA") and
awarding it attorneys' fees of $131,402.25 and expert witness
fees and costs of $35,391.16. The Defendants sought clarification
regarding allocation and, on May 28, 2002, this Court found
Defendants Federal Transit Administration ("FTA"), Niagara
Frontier Transit Authority ("NFTA") and New York State Urban
Development Corporation, doing business as Empire State
Development Corporation ("ESDS"), jointly and severally liable
for the fees and costs awarded to Plaintiff.
The FTA, NFTA and ESDS appealed, challenging the determination
that Plaintiff was a prevailing party under the NHPA. In
addition, the NFTA and ESDS argued that they are not federal
agencies and, therefore, cannot be held liable under the NHPA.
The Second Circuit affirmed this Court's finding that Plaintiff
is a prevailing party under the NHPA, reversed the finding of
liability as to the NFTA and ESDS, and remanded for a
recalculation of attorneys' fees and costs as against the FTA. In
particular, the Second Circuit held that under Buckhannon Board & Care Home,
Inc. v. West Virginia Department of Health and Human Resources,
532 U.S. 598 (2001), Plaintiff "is not entitled to recover
expenses for activities after [March 31, 2000], because no
court-ordered alteration of the parties' legal relationship
resulted from those efforts." Preservation Coalition of Erie
County v. Federal Transit Administration, 356 F.3d 444, 455 (2d
Cir. 2004). In its conclusion, the Second Circuit reiterated that
Plaintiff is not "entitled to recover fees as [sic] costs . . .
incurred for work subsequent to the court's March 31, 2000
order." Id. at 456.
In light of the foregoing, this Court recalculates its previous
awards of attorneys' fees and costs as follows.
Attorney Richard G. Berger's time records through March 31,
2000 reflect 248.15 hours of work related to obtaining the court
order for a Supplemental Environmental Impact Statement which
rendered Plaintiff a prevailing party in this action.*fn1
This Court's prior determinations that one hundred eighty-five
dollars per hour is a reasonable rate for Berger and that,
because his time records did not include sufficient detail as to
the nature of the work performed, it is appropriate to make a
proportionate reduction of fifteen percent in the hours
submitted, are not altered by the Second Circuit's decision.
Accordingly, Plaintiff is entitled to attorney fees for Berger of
thirty-three thousand twenty-one dollars and fifty-eight cents ($33,021.58) (248.15 hours x $185 per hour
Attorney Francis C. Amendola's time records through March 31,
2000 reflect 367.8 hours of work related to obtaining the court
order for a Supplemental Environmental Impact Statement which
rendered Plaintiff a prevailing party in this action. This
Court's prior determinations that one hundred fifty-five dollars
per hour is a reasonable rate for Amendola and that, because his
time records did not include sufficient detail as to the nature
of the work performed, it is appropriate to make a proportionate
reduction of fifteen percent in the hours submitted, are not
altered by the Second Circuit's decision. Accordingly, Plaintiff
is entitled to attorney fees for Amendola of forty-eight thousand
four hundred fifty-seven dollars and sixty-five cents
($48,457.65) (367.8 hours x $155 per hour x 85%).
The FTA did not contest payment of an expert witness fee of
five thousand dollars ($5,000.00) to Robert Melnick, Ph.D. and
Plaintiff remains entitled to reimbursement for that cost, which
is in accord with the Second Circuit's decision.
Plaintiff was previously awarded ten thousand one hundred
seventy-two dollars and twenty-one cents in expert witness fees
for the work of Daniel Rogers of Ryan-Biggs. That award, which
included compensation for work performed after March 31, 2000,
must be reduced. Plaintiff remains entitled to payment for work
performed through March 31, 2000, as set forth in Ryan-Biggs'
invoices numbered 19253, 19403, 19563, 19659. (Docket No. 99, Tielman Aff., Ex. 2). These invoices, totaling ten thousand
five hundred fifty dollars and thirty-four cents, are reduced by
one thousand two hundred ninety-six dollars and fourteen cents
for Rogers' attendance at a meeting of a committee of the Buffalo
Common Council (Id., Ex. 1), which previously was found to be
unrelated to the outcome of the litigation. Based on this
recalculation, Plaintiff is entitled to nine thousand two hundred
fifty-four dollars and twenty cents ($9,254.20) for Rogers' work.
Plaintiff had been awarded fifteen thousand two hundred fifty
dollars and thirty-three cents for the work of Roy Mann, a
waterfront planner, and three thousand four hundred ninety-eight
dollars for the Compton Company's preparation of construction
cost estimates. Plaintiff first retained Mr. Mann in April 2000
and all work by the Compton Company was performed in June 2000.
(Id., ¶¶ 7-9). Plaintiff is not entitled to reimbursement for
these costs, all of which were incurred after March 31, 2000.
Plaintiff submitted a spreadsheet with its motion for
attorneys' fees relative to the expenses it incurred in
prosecuting the litigation. (Docket No. 69, Berger Aff., Ex. B).
Once the expert witnesses and vendors already discussed above are
excluded, the remaining expenses total one thousand four hundred
seventy dollars and sixty-two cents, an amount previously awarded
to Plaintiff. Because that award included several expenses which
appear to have been incurred after March 31, 2000, it is hereby
reduced to six hundred eighty-three dollars and forty-two cents
IT HEREBY IS ORDERED, that Plaintiff is entitled to recover
attorneys' fees and costs as a prevailing party under the
National Historic Preservation Act against the Federal Transit
Administration in the following amounts:
(A) Eighty-one thousand four hundred seventy-nine dollars and
twenty-three cents ($81,479.23) in attorneys' fees for the work
of Richard G. Berger, Esq. and Francis C. Amendola, Esq.;
(B) Fourteen thousand two hundred fifty-four dollars and twenty
cents ($14,254.20) in expert witness fees for the work of Robert
Melnick, Ph.D. and Daniel Rogers; and
(C) Six hundred eighty-three dollars and forty-two cents
($683.42) for other costs.
FURTHER, the Clerk of the Court is directed to enter an Amended
Judgment consistent with this Order.