The opinion of the court was delivered by: William M. Skretny United States District Judge
Plaintiff is a prevailing party in this action under the National Historic Preservation Act (NHPA). Plaintiff has moved for reconsideration, under Rules 59(e) and 60(b) of the Federal Rules of Civil Procedure, of the Court's June 14, 2005 Judgment relative to its award of attorneys' fees and costs in the underlying litigation, and has also moved for attorneys' fees in connection with Defendants' appeal to the United States Court of Appeals for the Second Circuit under 16 U.S.C. §470w-4.
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 (ESDC), jointly and severally liable for the fees and costs awarded.
The FTA, NFTA and ESDC appealed, challenging the determination that Plaintiff was a "prevailing party" under the NHPA and also the determination that the relief obtained by Plaintiff was under the NHPA, rather than the National Environmental Policy Act. Additionally, the NFTA and ESDC 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 ESDC, and remanded this case for a recalculation of attorneys' fees and costs under the fee-shifting provisions of the NHPA as against the FTA. Preservation Coalition of Erie County v. Federal Transit Administration, 356 F.3d 444 (2d Cir. 2004).
In remanding, the Second Circuit directed that the award of fees and costs be limited "to work expended in obtaining the court-ordered Supplemental Environmental Impact Statement ("SEIS")," Id. at 446, and held that Plaintiff "is entitled to recover attorneys' fees and costs under the NHPA fee-shifting provisions for its expenses in obtaining the March 31, 2000 Order of the district court directing [Defendants] to prepare the SEIS," Id. at 455.
Throughout its opinion, the Circuit Court expressly referenced a number of this Court's decisions issued after March 31, 2000-to wit, the May 23, 2000 order compelling discovery (bench ruling), the Stipulation and Order of Discontinuance and Dismissal (Docket No. 68), the initial award of fees and costs (Docket No. 94), the supplemental award of fees and costs (Docket No. 114), and the allocation of fees and costs among Defendants (Docket No. 123), Id. at 449, 455-and then generally referenced all "other rulings subsequent to [the district court's] March 31, 2000 SEIS order," Id. at 455.
The Circuit Court held that under Buckhannon Board & Care Home, Inc. v. West Virginia Dep't of Health and Human Res., 532 U.S. 598, 121 S.Ct. 1835, 149 L.Ed. 2d 855 (2001), Plaintiff is "not entitled to recover the fees and costs associated with obtaining the Stipulation and Order that dismissed the case with prejudice," Id. at 451, and 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," Id. at 455. The Circuit Court explained that "[t]he district court's May 23, 2000 order compelling discovery (and other rulings subsequent to its March 31, 2000 SEIS order) resulted in the settlement and worked a procedural change between the parties rather than a material alteration of their legal relationship sufficient to warrant attorneys' fees." In its conclusion, the Circuit Court 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.
After receiving the Second Circuit's mandate, this Court recalculated fees and costs and, by Order dated June 2, 2005,*fn1 reduced the amount previously awarded Plaintiff to eighty-one thousand four hundred seventy-nine dollars and twenty three cents ($81,479.23) in attorneys' fees and fourteen thousand nine hundred thirty-seven dollars and sixty-two cents ($14,937.62) for expert witness fees and costs. The recalculated award was based on a March 31, 2000 cut-off date.
A. Motion for Reconsideration
Plaintiff contends that the Second Circuit did not intend to preclude its recovery of attorneys' fees for work performed between March 31, 2000 and April 12, 2000, or for work performed in the preparation and defense of its fee applications in district court.*fn2 According to Plaintiff, the Second Circuit did not expressly consider whether the Orders relating to those efforts resulted in court-ordered alterations in the parties' legal relationship under Buckhannon and, therefore, fees for that work are outside the scope of its decision. It is Plaintiff's position that this Court misinterpreted the Court of Appeals' mandate regarding the recalculation of fees and overlooked "controlling authority" when it failed, on remand, to engage in a Buckhannon analysis with regard to the at-issue Orders.*fn3
Defendant FTA, the Defendant solely responsible for payment of the fee award, argues that this Court's recalculation is consistent with the Second Circuit's decision and no further adjustment is required.
While Plaintiff has characterized his motion as one for reconsideration, it is more appropriately viewed as a motion to alter or amend a judgment. Plaintiff's motion was filed within 10 days after the entry of the challenged judgment, and so both Rules 59(e) (alteration or amendment of judgment) and 60(b) (relief from judgment based upon mistake) of the Federal Rules of Civil Procedure are appropriate avenues for his request for relief. In re Frigitemp Corp., 781 F.2d 324, 327-28 (2d Cir. 1986) (where failure to include award of prejudgment interest was not "mere clerical error," motion to alter judgment could have been brought under either Rule 59(e) or (60(b)); Gey Assocs. Gen. P'ship v. 310 Assocs., 346 F.3d 31, 34-35 (2d Cir. 2003) (Rule 60(b)(1) provides avenue to request that a district court correct legal errors in a judgment).*fn4 For the reasons set forth below, this Court is not persuaded that it committed legal error in recalculating the award of fees and costs and Plaintiff's motion to alter or amend the Judgment entered on June 14, 2005 is denied.
It is well-settled that a district court has no authority to depart from a mandate of a United States Court of Appeals. Briggs v. Pennsylvania Railroad Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 92 L.Ed. 1403 (1948); In re Ivan F. Boesky Securities Litig., 957 F.2d 65, 69 (2d Cir.1992). A mandate includes the certified copy of the appellate court's judgment, the opinion, and any directions as to costs. United States v. Reyes, 49 F.3d 63, 66 (2d Cir. 1995). On remand, the district court's actions should be consistent with the express terms and the spirit of the appellate court's mandate. Quern v. Jordan, 440 U.S. 332, 347 n.18, 99 S.Ct. 1139, 59 L.Ed. 2d 358 (1979). However, it is well-settled that this general rule "does not apply to matters left open by the mandate." Banco National de Cuba v. Farr, 383 F.2d 166, 177 (2d Cir. 1967) (citations omitted), cert. denied, 390 U.S. 956, 88 S.Ct. 1038, 19 L.Ed. 2d 1151 (1968).
In this case, Plaintiff's claimed entitlement*fn5 to certain of its attorneys' fees for work performed after March 31, 2000 is not a matter "left open" by the Second Circuit's mandate. The Second Circuit expressly considered whether and when Plaintiff became a "prevailing party" under the NHPA, and also considered the scope of its entitlement to fees under that statute's fee shifting provisions. The Court unequivocally determined that:
1) the March 31, 2000 court-ordered SEIS made Plaintiff a prevailing party, Preservation Coalition, 356 F.2d at 452; 2) under Buckhannon, Plaintiff is not entitled to recover any expenses for activities or fees for work after that date, Id. at 455; and 3) on remand, this Court is to limit its fees and costs award to work expended in obtaining the SEIS, Id. at 446.
In light of the mandate's express directives, this Court is not persuaded by Plaintiff's argument that, by discussing the December 18, 2000 Stipulation and Order of Dismissal, Id. at 451, the Second Circuit implicitly intended to preclude only the post-March 2000 attorneys' fees attributable to obtaining the stipulation of settlement. This Court finds it significant that the Second Circuit's opinion specifically notes each of the post-March 2000 Decision and Orders on attorneys' fees and fee allocation. Id. at 449. In light of the Second Circuit's express acknowledgment of those Orders, this Court must conclude that, had the Court of Appeals intended Plaintiff to recover fees for its fee applications and related litigation, it would have said so. Moreover, Plaintiff's interpretation of the Second Circuit's intent is at odds ...