William F. Holdner Dba Holdner Farms v. Coba

WILLIAM F. HOLDNER DBA HOLDNER FARMS, Plaintiff, v. KATY COBA, DIRECTOR OF THE OREGON DEPARTMENT OF AGRICULTURE,IN HER INDIVIDUAL AND OFFICIAL CAPACITY, DICK PEDERSON, DIRECTOR OFTHE OREGON DEPARTMENT OF ENVIRONMENTAL QUALITY, IN HIS INDIVIDUALAND HIS OFFICIAL CAPACITY, Defendants.

Case No. 3:15-cv-2039-AC

UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION

November 9, 2016

OPINION AND ORDER

ACOSTA, Magistrate Judge:

Introduction

Plaintiff William Holdner ("Holdner"), appearing pro se, filed a civil rights action against various Oregon state officials challenging the state's authority to regulate livestock operations on his land. The court interpreted the complaint filed on October 29, 2015 (the "Complaint") to allege three claims: 1) deprivation of Holdner's constitutional due process rights under 42 U.S.C. § 1983 ("Section 1983"); (2) Oregon's Department of Environmental Quality ("DEQ") and Department of Agriculture ("ODA") acted outside their enforcement authority under the Clean Water Act; and 3) Holdner's land patent bars the state from regulating water quality on his land. The court granted a motion to dismiss filed by defendants Katy Coba, Director of the ODA, and Dick Peterson, Director of the DEQ (collectively "Defendants") finding Holdner lacked standing, the claims are barred by claim preclusion, issue preclusion, and Eleventh Amendment immunity, and Defendants are entitled to qualified immunity. Defendants now seek to recover $23,803.50 in attorney fees under 42 U.S.C. § 1988 ("Section 1988"). Holdner has not responded to Defendants' motion for attorney fees.

The court finds Holdner's filing of this lawsuit was frivolous, unreasonable, or without foundation and Defendants are entitled to recover attorney fees under Section 1988, but some of the requested fees are not recoverable or reasonable. Accordingly, Defendants' motion for attorney fees is¹ granted in part and Defendants are awarded attorney fees in the amount of $13,723.80.

Legal Standard

I. Award of Attorney Fees under Section 1988

The standard for awarding attorney fees to a prevailing defendant in a civil rights action is governed by Section 1988. The provisions of Section 1988 "give a court the discretion to award attorney's fees to a prevailing defendant in certain civil rights lawsuits if the court finds that theplaintiff's action is 'frivolous, unreasonable, or without foundation.'" Miller v. Los Angeles Cty. Bd. of Educ., 827 F.2d 617, 619 (9th Cir. 1987)(quoting Christiansburg Garment Co. v. Equal Emp't Opportunity Comm'n, 434 U.S. 412, 421 (1978)²). This standard is applied more stringently, however, where a plaintiff is proceeding pro se. Miller, 827 F.2d at 620 ("The Christiansburg standard is applied with particular strictness in cases where the plaintiff proceeds pro se.")(citing Hughes v. Rowe, 449 U.S. 5, 15-16 (1980)). When evaluating the appropriateness of an award under Section 1988, the court must consider the pro se plaintiff's "ability to recognize the merits of his or her claims," with the understanding a pro se plaintiff is less able to do so than a plaintiff represented by counsel. Miller, 827 F.2d at 620.

II. Amount of Reasonable Attorney Fees

When determining a "reasonable" award under Section 1988, courts first "calculate the 'lodestar figure' by taking the number of hours reasonably expended on the litigation and multiplying it by a reasonable hourly rate." Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 1064 (9th Cir. 2006). The court must then decide whether to enhance or reduce the figure by evaluating the factors discussed in Kerr v. Screen Extras Guild, Inc., 526 F.2d 67 (9th Cir. 1975), not already considered in calculation of the lodestar figure. The Kerr factors include:

(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the 'undesirability' of the case, (11) the nature and length of the professional relationship with the client,and (12) awards in similar cases.

Id. at 70. Only applicable factors must be addressed. Sapper v. Lenco Blade, Inc., 704 F.2d 1069, 1073 (9th Cir. 1983).

"[T]here is a 'strong presumption' that the lodestar figure is reasonable, but that presumption may be overcome in those rare circumstances in which the lodestar does not adequately take into account a factor that may be properly considered in determining a reasonable fee." Perdue v. Kenny A., 559 U.S. 542, 554 (2010). The district court has "considerable discretion" in determining the reasonableness of a fee award. Webb v. Ada County, 195 F.3d 524, 526-7 (9th Cir. 1999).

Discussion

I. Award of Attorney Fees under Section 1988

Defendants contend an award of attorney fees to a prevailing defendant is appropriate here as Holdner "initiated this litigation fully aware that his claims, previously tried in multiple venues, had not only been adjudicated against him, but had also previously been precluded." (Defs.' Mot. for Costs and Attorney Fees, ECF No. 47, at 5.) Defendants argue the court should consider the previous litigation and rulings as evidence of Holdner's knowledge of the probable result in this case and find Holdner's claims were frivolous, unreasonable, and without foundation.

The legislative purpose of section 1988 is "to promote vigorous private enforcement of civil rights. . . ." Tutor-Saliba, 452 F.3d at 1063. Consequently, "[p]laintiffs prevailing in a civil rights action should ordinarily recover attorneys' fees unless special circumstances would render such an award 'unjust.' However, a prevailing defendant should not routinely be awarded attorneys' fees simply because he has succeeded, but rather only where the action is found to be 'unreasonable, frivolous, meritless, or vexatious.'" Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir.1994)(citing Roberts v. Spalding, 783 F.2d 867, 874 (9th Cir. 1986)). The court need not determine the claim was brought in "subjective bad faith" to award attorney fees to a defendant where such fees are otherwise appropriate. Christiansburg, 434 U.S. at 421.

In Christiansburg, the Court identified "two strong equitable considerations counseling an attorney's fee award to a prevailing Title VII plaintiff that are wholly absent in the case of a prevailing Title VII defendant." Id. at 418. First, the private plaintiff is the enforcement mechanism chosen by Congress and, second, the fees awarded a successful plaintiff are assessed against a violator of federal law. Id. Accordingly, a successful defendants seeking fees must rely on different equitable considerations. Id. at 419.

The legislative history of Title VII made clear "that while Congress wanted to clear the way for suits to be brought under the Act, it also wanted to protect defendants from burdensome litigation having no legal or factual basis." Id. at 420. However, the Court highlighted the importance of avoiding the logic of hindsight:

[I]t is important that a district court resist the understandable temptation to engage in post hoc reasoning by concluding that, because a plaintiff did not ultimately prevail, his action must have been unreasonable or without foundation. This kind of hindsight logic could discourage all but the most airtight claims, for seldom can a prospective plaintiff be sure of ultimate success. No matter how honest one's belief that he has been the victim of discrimination, no matter how meritorious one's claim may appear at the outset, the course of litigation is rarely predictable. Decisive facts may not emerge until discovery or trial. The law may change or clarify in the midst of litigation. Even when the law or the facts appear questionable or unfavorable at the outset, a party may have an entirely reasonable ground for bringing suit.

Id. at 421-22. Even tenuous circumstances furnishing a basis for a claim may defeat a request for attorney fees by a prevailing defendant. Karam v. City of Burbank, 352 F.3d 1188, 1196 (9th Cir. 2003).

This is the third action initiated in this court by Holdner asserting claims based on Oregon's enforcement of water quality standards against his livestock operation. In 2006, the ODA became concerned Holdner was discharging animal waste from his property in a manner likely to send it into a nearby creek. Holdner v. Coba, Civ. No. 09-979-AC, 2011 WL 2633165, at *3 (D. Or. July 5, 2011)("Holdner I"). As a result, the ODA issued a civil citation for pollution violations against Holdner on three separate occasions - March 9, 2007, February 10, 2009, and June 15, 2009. Id. Additionally, in 2010, the Oregon Department of Justice ("DOJ") indicted Holdner on three felony and twenty-five misdemeanor counts of water pollution. Id. at *3. Holdner requested administrative review of the civil citations, arguing his ranch was exempt from state and federal regulation, and he moved to dismiss the criminal charges on the ground the ODA exceeded its authority in enforcing the federal statute. Id. at *3; see also Holdner v. Kroger, No. 3:12-cv-01159-PK, 2012 WL 6131637, at *2 (D. Or. Nov. 6, 2012)("Holdner II"). The administrative hearing resulted in final orders in the agency's favor and the court denied Holdner's motion in the criminal proceedings. Holdner I, 2011 WL 2633165, at *3; Holdner II, 2012 WL 6131637, at *3.

On August 20, 2009, Holdner filed an action against the ODA complaining about the issuance of the civil citations. Holdner I, 2011 WL 2633165, at *1. Holdner again asserted the ODA exceeded its authority under federal statues and sought to enjoin it from taking further enforcement actions against him. Id. at *4. After...