Browder v. City of Moab

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
October 14, 2005
UNITED STATES COURT OF APPEALS
Clerk of Court
TENTH CIRCUIT

WILLIAM T. BROWDER,

Plaintiff-Appellant/Cross-
Appellee,
v. Nos. 04-4198 & 04-4206
THE CITY OF MOAB; GRAND
COUNTY; and THE GRAND
COUNTY SOLID WASTE
MANAGEMENT SERVICE
DISTRICT #1,

Defendants-Appellees/Cross-
Appellants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
(D.C. No. 2:99-CV-807-J)

Michael A. Zody of Parsons Behle & Latimer, Salt Lake City, Utah, for Plaintiff-
Appellant/Cross-Appellee.

Benson L. Hathaway, Jr. (Stephen W. Geary with him on the briefs) of Kirton &
McConkie, Salt Lake City, Utah, for Defendants-Appellees/Cross-Appellants.

Before McCONNELL, McKAY, and TYMKOVICH, Circuit Judges.

McKAY, Circuit Judge.
 Plaintiff is a Colorado property owner whose land abuts City of Moab

property containing a former Class I landfill (“Moab landfill”). Because of

multiple environmental concerns regarding ownership and management of the

landfill, Plaintiff brought suit pursuant to the Clean Water Act (“CWA”), the

Resource Conservation Recovery Act (“RCRA”), as well as several state-law

causes of action. Plaintiff sought an injunction demanding compliance with the

relevant statutes in addition to money damages related to the state-law causes of

action. In all, he sought relief on seven claims.

Protracted litigation ensued. After most of the state-law claims were

dismissed by the district court, 1 only three of the seven remained to be resolved

during the bench trial–two RCRA claims and one CWA claim. Although Plaintiff

did not prevail on most of his claims, the district court did enter an order granting

relief on one of his RCRA causes of action. The court ruled for Defendants as to

the other RCRA claim and the CWA claim.

The injunction obtained by Plaintiff ordered six specific items of injunctive

relief:

1. The Defendants . . . shall erect a fence surrounding the entire

Dismissal of Plaintiff’s negligence claim was facilitated by Plaintiff’s
1

stipulation to dismiss the claim.

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 Moab landfill.
2. Defendants must monitor combustible gases at the Moab
landfill on a quarterly basis.
3. Defendants must keep all monitoring equipment operational.
4. Defendants must continue to monitor the Moab landfill cover
on a regular basis to prevent extensive pooling or puddling and
to diminish the risk of extensive erosion following storms.
5. Defendants must maintain and file the reports required by the
Class IV permit.
6. To the extent the Service District outsources any work at the
Moab landfill, the Service District must monitor this work and
ensure that all required reports are appropriately filed.

Aplt. App., Vol. I, at 170-71.

The district court also ordered each party to bear their own costs and

attorney’s fees. Plaintiff moved to amend the judgment arguing that he was a

prevailing party and therefore entitled to costs and attorney’s fees. The district

court denied the motion. Both sides now appeal the district court’s order denying

both parties’ attorney’s fees. 2

We have jurisdiction over the district court’s denial of attorney’s fees

pursuant to 28 U.S.C. § 1291. Awards of attorney’s fees are generally reviewed

for an abuse of discretion. Mares v. Credit Bureau of Raton, 801 F.2d 1197, 1201

(10th Cir. 1986). In reaching that decision, we review de novo whether the

2
Although Defendants did not directly raise this argument to the district
court, raising it for the first time on appeal is not improper. The district court’s
sua sponte ruling on attorney’s fees negated Defendants’ responsibility of raising
this issue first to the district court. Prior to the entry of judgment, Defendants
lacked the ability to raise the issue. See DUCivR 54-2(f) (mandating that motions
for attorney’s fees be filed no later than 30 days after the entry of judgment).

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district court applied the correct legal standard, and we review its findings of fact

for clear error. See Kiowa Indian Tribe v. Hoover, 150 F.3d 1163, 1165 (10th

Cir. 1998).

At issue in this appeal is the attorney’s fees provision for RCRA, which is

codified at 42 U.S.C. § 6972(e). 3 Before addressing whether either party is

entitled to an award of attorney’s fees, we must determine the proper construction

of the statute. The relevant portion of that section reads: “The court, in issuing

any final order in any action brought pursuant to this section . . . may award costs

of litigation (including reasonable attorney and expert witness fees) to the

prevailing or substantially prevailing party, whenever the court determines such

an award is appropriate.” 42 U.S.C. § 6972(e). There is relatively little case law

interpreting this section of RCRA. However, it is clear from the permissive

language used by Congress in enacting this statute (e.g. “may”) that an award of

attorney’s fees to the prevailing party is discretionary.

In light of the dearth of case law construing this statute, Plaintiff urges the

court to follow precedent which interprets the attorney’s fee provision of 42

U.S.C. § 1988(b). We find this path persuasive. Section 1988 also uses

3
Defendants seek attorney’s fees pursuant to 33 U.S.C. § 1365(d), the
attorney’s fees provision of CWA, as well as § 6972(e). The operative sections of
each statute are indistinguishable. Our discussion of § 6972(e) applies with equal
force to § 1365(d), and the sections will therefore not be discussed separately.

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permissive language in empowering courts to grant an award of attorney’s fees:

“In any action or proceeding to enforce a provision of section[] . . . 1983 . . . of

this title, . . . the court, in its discretion, may allow the prevailing party, other

than the United States, a reasonable attorney’s fee . . . .” 42 U.S.C. § 1988(b)

(2000). To some extent, the plain language of § 1988(b) appears to grant courts

broader discretion than that authorized by § 6972(e). However, for our purposes,

we view the two sections as sufficiently analogous to use case law in interpreting

either statute interchangeably. 4

Our view finds support in Supreme Court precedent. In City of Burlington

v. Dague, 505 U.S. 557, 561-62 (1992), the Supreme Court stated:

Section 7002(e) of the SWDA and § 505(d) of the CWA authorize a
court to “award costs of litigation (including reasonable attorney . . .
fees )” to a “prevailing or substantially prevailing party.” 42 U.S.C. §
6972(e) (emphasis added); 33 U.S.C. § 1365(d) (emphasis added).
This language is similar to that of many other federal fee-shifting
statutes, see, e.g., 42 U.S.C. §§ 1988, 2000e-5(k), 7604(d); our case
law construing what is a “reasonable” fee applies uniformly to all of
them. Flight Attendants v. Zipes, 491 U.S. 754, 758, n.2, 109 S. Ct.
2732, 2735, n.2, 105 L. Ed. 2d 639 (1989).

Although the Supreme Court was specifically concerned with the “reasonable fee”

language of § 6972(e), its logic is equally applicable to the prevailing party

Certain sections of each statute are clearly not similar, rendering
4

interchangeability of case law impractical. For example, § 6972(e) authorizes an
award of fees to a “substantially prevailing party.” There is no such language in
§ 1988(b).

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language found in the same section. 5 In light of the Supreme Court’s general

recognition of the interchangeability of the case law interpreting similar

attorney’s fees statutes, e.g. § 6972(e), § 1988(b), § 2000e-5(k), and § 7604(d),

we now look to Supreme Court and Tenth Circuit case law in deciding whether

the district court was correct in declining the parties’ requests for fees.

Applying this case law adds color to § 6972(e)’s admittedly ambiguous

notation about the standards for determining one’s prevailing party status and also

determines whether the standards differ between plaintiffs and defendants. In

Hensley v. Eckerhart, the Supreme Court ruled that “a prevailing plaintiff ‘should

ordinarily recover an attorney’s fee unless special circumstances would render

such an award unjust.’” 461 U.S. 424, 429 (1983) (quoting S. Rep. No. 94-1011,

p. 4 (1976)) (emphasis added). Whereas, the Supreme Court noted in

Christiansburg Garment Co. v. EEOC that prevailing defendants are only to be

awarded attorney’s fees when the plaintiff’s claim is “frivolous, unreasonable, or

groundless, or that the plaintiff continued to litigate after it clearly became so.”

434 U.S. 412, 422 (1978). Once prevailing party status is determined, the court

then determines the reasonableness-of-the-fee request. See 42 U.S.C. § 6972(e);

5
In making this ruling, we are in accord with the Second Circuit. See
Dague v. City of Burlington, 935 F.2d 1343, 1357 (2d Cir. 1986) (explaining that
“the principles governing fee awards under [§ 1988] are applicable to the
attorney's fee provisions” of § 6792(e)), rev’d on other grounds sub nom. City of
Burlington v. Dague, 505 U.S. 557, 561-62 (1992).

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see also Hensley, 461 U.S. at 433.

The district court gave no reasoning when it ordered the parties to “bear

[their] own costs of action and attorney fees.” 6 Aplt. App., Vol. I, at 171 (Dist.

Ct. March 26, 2003 Order and Judgment). Generally, district courts must give an

adequate explanation for their decision regarding requests for attorney’s fees,

otherwise we have no record on which to base our decision. See Bartlett v.

Martin Marietta Operations Support, Inc. Life Ins. Plan, 38 F.3d 514, 519-20

(10th Cir. 1994) (reversing and remanding attorney fee issue because the district

court “did not explain its ruling on the petition for attorneys’ fees adequately”).

On this ground alone we remand the case to give the district court the opportunity

to address this issue. However, because the determination of prevailing party 7

status is generally a question of law, we will address that issue in particular. See

Jenkins by Jenkins v. State of Mo., 127 F.3d 709, 713-14 (8th Cir. 1997)

(explaining that “the question of prevailing party status, a statutory term, presents

a legal issue”). In addition, we take this opportunity to announce some general

6
Plaintiff gave the district court a second opportunity to explain its reasons
for denying Plaintiff an award of attorney’s fees when it filed a motion to amend
the order and judgment. The district court denied the judgment and again failed
to articulate its reasons for so doing.
7
Although § 6972(e) uses the disjunctive “or” in explaining that prevailing
parties as well as substantially prevailing parties are entitled to attorney’s fees,
our attention has been directed by the parties to the “prevailing party” language.
Therefore, we leave for another day construction of the “significant prevailing
party” language found in § 6972(e).

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principles of law regarding an award of attorney’s fees in an effort to give the

district court guidance as to the issues it must address on remand.

Noting the presumption in favor of awarding prevailing plaintiffs attorney’s

fees, we turn to the question of whether Plaintiff prevailed in this case for

purposes of obtaining an award of attorney’s fees even though he clearly lost on

several of his claims. In determining whether one is a prevailing plaintiff, we do

not look to the case as a whole and weigh the prevailing claims against the

defeated claims. Instead, each claim is to be viewed separately as practiced by

the Ninth Circuit in Thomas v. City of Tacoma, 410 F.3d 644 (9th Cir. 2005). In

Thomas, the Ninth Circuit recognized the plaintiff as a prevailing party as to the

one claim he won at trial, despite the fact that the defendants were victorious on

the numerous other claims, including a counterclaim. 410 F.3d at 647, 649 (“The

fact that Plaintiff failed to recover on all theories of liability is not a bar to

recovery of attorney’s fees.”) (emphasis in original).

The logic of Thomas is supported by the Supreme Court’s decision in

Farrar v. Hobby, where the Court held that a plaintiff “prevails” “when actual

relief on the merits of his claim materially alters the legal relationship between

the parties by modifying the defendant's behavior in a way that directly benefits

the plaintiff.” 506 U.S. 103, 109 (1992). The ultimate degree of success or

magnitude of relief obtained is irrelevant to the question of eligibility for a fee

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award. Id. at 114. Nonetheless, the parties focus much of their attention on the

quantum of relief actually obtained by Plaintiff. In so doing, the parties miss the

point of Farrar. In addition, the Supreme Court noted in Hensley that it is not

“necessarily significant that a prevailing plaintiff did not receive all the relief

requested.” 461 U.S. at 435 n.11. In this case, Plaintiff won on one of his RCRA

claims when he obtained an injunction against Defendants requiring them to

comply with certain portions of federal law as articulated above. Certainly, this

change in the legal relationship between the parties is sufficient to qualify

Plaintiff for prevailing party status. 8

However, Plaintiff also clearly lost on his other claims. This presents a

somewhat difficult task for the district court in deciding what to consider in

awarding a reasonable fee. 9 The district court’s analysis of the appropriate

8
As is the general rule, special circumstances may nonetheless exist that
would make the award of attorney’s fees in this case unjust. See Hensley, 461
U.S. at 429; see also Stewart v. Donges, 979 F.2d 179, 184 (10th Cir. 1992) (“The
presence of ‘special circumstances’ usually results in the award of no fees at
all.”). We have recognized numerous cases that meet this special circumstances
test, although we have never articulated an overarching approach for reviewing
them. See, e.g., Donges, 979 F.2d at 184 (limiting the extent of attorney’s fee
award to prevailing plaintiff because “he was responsible for the district court
proceeding with the trial without jurisdiction”); Ellis v. Univ. of Kansas Med.
Ctr., 163 F.3d 1186, 1200 (10th Cir. 1998) (explaining that “plaintiffs can give up
their statutory entitlement to fees as part of the settlement arrangement”). On
remand, the district court may consider whether this case is in line with those
cited above which presented special circumstances.
9
We generally refer to this general calculation as the lodestar, which is the
(continued...)

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attorney’s fee to be awarded Plaintiff on remand should be guided by the Supreme

Court’s paradigmatic case in Hensley:

Where the plaintiff has failed to prevail on a claim that is distinct in
all respect from his successful claims, the hours spent on the
unsuccessful claim should be excluded in considering the amount of
a reasonable fee. Where a lawsuit consists of related claims, a
plaintiff who has won substantial relief should not have his
attorney’s fee reduced simply because the district court did not adopt
each contention raised. But where the plaintiff achieved only limited
success, the district court should award only that amount that is
reasonable in relation to the results obtained.

461 U.S. at 440 (emphasis added).

In a case like this, where Plaintiff “achieved only partial or limited

success,” the calculation for reasonable attorney’s fees requires more than just

determining “the product of hours reasonably expended on the litigation as a

whole times a reasonable hourly rate” because such “may be an excessive

amount.” Id. at 436 (emphasis added). Two questions must be addressed by the

district court. “First, did the plaintiff fail to prevail on claims that were unrelated

to the claim[] on which he succeeded? Second, did the plaintiff achieve a level of

success that makes the hours reasonably expended a satisfactory basis for making

9
(...continued)
“product of the number of attorney hours ‘reasonably expended’ and a ‘reasonable
hourly rate.’” Robinson v. City of Edmond, 160 F.3d 1275, 1281 (10th Cir. 1998)
(citing Hensley, 461 U.S. at 433).

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a fee award?” 10 Id. at 434. Plaintiff can only obtain an award of attorney’s fees

for time spent prosecuting the successful claim as well as those related to it.

However, that does not end the matter. The district court still retains

discretion to adjust the award commensurate with the degree of success obtained.

Id. at 436. This last inquiry is not amenable to a formulaic table but is a matter of

discretion. Id. In exercising this discretion, however, we note that “[t]he record

ought to assure us that the district court did not ‘eyeball’ the fee request and cut it

down by an arbitrary percentage . . . .” Robinson v. City of Edmond, 160 F.3d

1275, 1281 (10th Cir. 1998) (quoting People Who Care v. Rockford Bd. of Educ.,

Sch. Dist. No. 205, 90 F.3d 1307, 1314 (7th Cir. 1996)).

In denying Defendants’ fees, the district court again gave no rationale for

its decision. This is reason enough to remand this case in order to give the

district court an opportunity to explain the basis for its decision. See Bartlett, 38

F.3d at 519-20. We note that Defendants clearly prevailed as to Plaintiff’s second

and third causes of action. However, as contrasted to the “ordinarily” language

governing the award of prevailing plaintiff’s attorney’s fees, Defendants may only

be awarded attorney’s fees if the district court finds that either of the claims were

“frivolous, unreasonable, or groundless, or that the plaintiff continued to litigate

In answering the first inquiry, we note that claims are related if they
10

“involve a common core of facts or will be based on related legal theories.”
Hensley, 461 U.S. at 435.

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after it clearly became so.” Christiansburg, 434 U.S. at 422. It is for the district

court to make that finding.

REVERSED and REMANDED.

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04-4198 & 04-4206, Browder v. City of Moab, et al.

TYMKOVICH, J., concurring.

I agree with the majority that the plaintiff is a “prevailing party” under the

line of United States Supreme Court cases analyzing fee-shifting statutes for civil

rights and environmental cases. See, e.g., Farrar v. Hobby, 506 U.S. 103 (1992);

City of Burlington v. Dague, 505 U.S. 557 (1992); Buckhannon Bd. & Care Home,

Inc. v. W. Va. Dep’t of Health & Human Res., 532 U.S. 598, 600 (2001). The

plaintiff therefore has crossed the threshold for eligibility to fees. But mere

eligibility is not enough. The next step is entitlement to reasonable fees. I write

separately to add a few thoughts on reasonableness. A related question to the

amount of fees requested here is whether the defendants may be said to be a

“substantially prevailing party” in any respect.

As a preliminary matter, the Supreme Court has been less than clear in

identifying the origins of the standards employed in assessing attorney’s fees. At

first blush, the environmental and civil rights laws have different policy

objectives such that Congress may have had a different view of how and when

attorney’s fees should be assessed in such cases. But the Supreme Court has, thus

far, instructed the federal courts to treat the fee-shifting statutes identically.

Dague, 505 U.S. at 561-62; Pennsylvania v. Delaware Valley Citizens’ Council

for Clean Air, 478 U.S. 546, 559-60 (1986). We thus must look at prevailing

party status in that light, and move to what “award is appropriate” under 42
U.S.C. § 6972(e).

The Supreme Court has instructed that the “most critical factor” in

assessing reasonableness is the “degree of success obtained.” Farrar, 506 U.S. at

114 (quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)). The majority

correctly shows that success requires some material alteration in the relationship

between the plaintiff and the defendant. Here, such a material alteration in

relationship is achieved through an enforceable judicial decree arising from the

complaint.

Mere “success,” however, is not enough. The Supreme Court has instructed

that in “some circumstances, even a plaintiff who formally ‘prevails’ under

§ 1988 should receive no attorney’s fees at all.” Farrar, 506 U.S. at 115. As

Justice O’Connor explained in her concurrence, although a technical victory

might allow a plaintiff some claim to fees, a court may “announce a sensible

decision to award low fees or no fees at all.” Id. at 118 (O’Connor, J.,

concurring). That explanation naturally follows from the Court’s observation in

Hensley that “where the plaintiff achieved only limited success, the district court

should award only that amount of fees that is reasonable in relation to the results

obtained.” Hensley, 461 U.S. at 440. See also M. Schwartz & J. Kirklin, Section

1983 Litigation: Claims, Defenses, and Fees § 6.6 (1997).

Consequently, a district court retains considerable discretion to determine

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the amount of success a plaintiff achieved and craft an award of attorney’s fees

commensurate with that success. Accordingly, in my view, the district court

must look to the degree of success in light of the judicially sanctioned alteration

in the relationship between the parties. Here, that may mean some or no

attorney’s fees at all. Our cases, of course, require the court to explain its

reasoning on the record for purposes of appellate review. See, e.g., Michael A.

Cramer v. United States, 47 F.3d 379, 382 (10th Cir. 1995).

As a final matter, the statute’s text seems to envision that a defendant may

be entitled to prevailing party status in some circumstances. The Supreme Court

in construing § 1988, however, has established a high bar based on frivolousness

or meritlessness. See, e.g., Christiansburg Garment Co. v. EEOC, 434 U.S. 412,

421 (1978). In enacting RCRA, however, Congress potentially added a class of

eligible parties by inserting the phrase “substantially prevailing party.” It is far

from clear what Congress had in mind with respect to this phrase, and the parties

to this appeal have yet to suggest an interpretation of this language that alters the

application of Supreme Court case law.

In any event, here it appears that the plaintiff achieved an “alteration of

legal status” between the parties so as to be eligible for fees under Supreme Court

precedent. Thus, while the defendants “prevailed” on several Clean Water Act

claims by virtue of achieving a defense verdict, the applicable precedent appears

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to foreclose an award unless the claims asserted were, as the majority observes,

either unrelated to the RCRA claim, or “frivolous, unreasonable or groundless.”

Although the statute’s text suggests a broader reading of “prevailing party,” the

Supreme Court has not been presented with a case that would expand eligibility

for fees under a different standard.

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