6/18/2020
National Indian Law Library (NILL)
Next, the BIA objects to the claimed hours as excessive. It seeks to exclude all hours not
directly related to opposing the BIA’s own motions, i.e., attorney labor related to intervenors or
in the tribal courts arising out of this lawsuit. It also seeks to exclude attorney labor related to
Plaintiffs’ unsuccessful motions or oppositions and to reduce attorney labor for motions
related to multiple parties in proportion to their number. The Court denies the motion. The
Court does not nd any unsuccessful motions to have been so frivolous so as to exclude the
related labor from the fee award in a case where there was overall success. Nor does it make
sense to exclude attorney labor necessarily expended in the tribal courts under this Court’s
orders or litigating against third parties in the present action, when that labor was ultimately
necessitated by the BIA’s unjusti ed underlying actions in the rst instance. As the Supreme
Court has stated in no uncertain terms:
We emphasize, as we have before, that the determination of fees “should not result in a second
major litigation.” The fee applicant ... must, of course, submit appropriate documentation to
meet “the burden of establishing entitlement to an award.” But trial courts need not, and indeed
should not, become green-eyeshade accountants. The essential goal in shifting fees ... is to do
rough justice, not to achieve auditing perfection. So trial courts may take into account their
overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.
And appellate courts must give substantial deference to these determinations, in light of “the
district court’s superior understanding of the litigation.” We can hardly think of a sphere of
judicial decisionmaking in which appellate micromanagement has less to recommend it.
Fox v. Vice, 563 U.S. 826, 838 (2011) (citations omitted). Plaintiffs’ attorney has provided detailed
records of attorney labor, and the Court nds it not to be excessive given the dif culty of this
case and the amount of effort needed to accomplish Plaintiffs’ goals both here and in the tribal
fora pursuant to this Court’s orders.
Finally, the BIA objects to awarding an enhanced rate of attorney labor beyond the statutory
rate of $125/hr. Plaintiffs reply that they seek no enhanced rates but only cost of living
adjustments to the statutory rate under § 2412(d)(2)(A) according to Thangaraja v. Gonzales, 428
F.3d 870, 876–77 (9th Cir. 2005) and the Circuit Advisory Committee Note to Ninth Circuit Rule
39-1.6 (citing Thangaraja). The Court agrees with Plaintiffs that the requested cost of living
adjustments are appropriate under the statute and Circuit law. And the resulting rates are in
fact modest given the dif culty of the case and the results achieved.
CONCLUSION
IT IS HEREBY ORDERED that the Motion for Attorney’s Fees (ECF No. 305) is GRANTED.
Attorneys fees are awarded in the amount of $102,917.97. Plaintiffs should separately ask the
Clerk to tax costs.
IT IS SO ORDERED.
Dated this 24th day of January, 2019.
All Citations
Slip Copy, 2019 WL 320560
https://narf.org/nill/bulletins/federal/documents/winnemucca_v_us_doi.html
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