National Family Farm Coalition v. United States Environmental Protection Agency, No. 19-70115 (9th Cir. 2022)
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In 2020, the Ninth Circuit vacated the EPA’s conditional registrations for three dicamba-based herbicides as violating the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA), 7 U.S.C. 136n(b). The court found that the EPA substantially understated risks that it acknowledged and failed entirely to acknowledge other risks. In a subsequent petition, seeking attorneys’ fees under the Equal Access to Justice Act, 28 U.S.C. 2412(d)(1)(A), the plaintiffs in the underlying action argued that their requested attorneys’ fees should be calculated based on the market rates in San Francisco, where their petition for review was calendared for oral argument. Only one of their four attorneys is located in San Francisco. The other three are located in Portland.
The Ninth Circuit disagreed. Where, as here, attorneys’ fees are incurred in connection with a petition for review in a court of appeals under FIFRA, the presumptive relevant community for calculating market rates is the legal community where counsel are located and where they do the bulk of their work.
Court Description: Equal Access to Justice Act. The panel denied in part petitioners’ request for attorneys’ fees under the Equal Access to Justice Act for petitioners’ work in connection with a successful petition for review which challenged the Environmental Protection Agency’s grant of temporary registrations for new dicamba pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”). The underlying petition sought review of a final decision of an administrative agency that was not an appeal from a decision by a tribunal within the agency. There was thus no presumptive location within the Ninth Circuit where petitioners’ argument should have been calendared. Petitioners contend that their attorneys’ fees should be calculated based on the market rates in San Francisco, where their petition for review was calendared for oral argument. The panel disagreed. The panel held that where, as here, attorneys’ fees are incurred in connection with a petition for review in this court under FIFRA, the presumptive relevant NAT’L FAMILY FARM COALITION V. USEPA 3 community for calculating market rates is the legal community where counsel are located and where they do the bulk of their work. The panel concluded that attorneys’ fees for petitioners’ three lead counsel located in Portland should be calculated based on market rates in Portland. The panel referred petitioners’ request to the Appellate Commissioner for further proceedings.
This opinion or order relates to an opinion or order originally issued on June 3, 2020.
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