South Yuba River Citizens League et al v. National Marine Fisheries Service et al, No. 2:2006cv02845 - Document 498 (E.D. Cal. 2012)
Court Description: ORDER signed by Judge Lawrence K. Karlton on 11/1/12 ORDERING Plaintiffs' motion for a supplemental order directing the Federal Defendants to pay the attorneys' fees and costs awarded by the court, 491 , is DENIED. Final Judgment in this case has been entered, as of issuance of this court's May 31, 2012 Order, 475 . The fee awards set forth in the court's March 27, 2012 and May 31, 2012 orders are STAYED pending resolution of Defendants' appeal. The parti es SHALL notify the court upon resolution of the Federal Defendants' appeal or, if the Office of the Solicitor General decides not to approve Federal Defendants' appeal, upon the withdrawal of such appeal. The motion hearing currently set for November 5, 2012 at 10:00 a.m. is VACATED.(Matson, R)
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South Yuba River Citizens League et al v. National Marine Fisheries Service et al Doc. 498 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 SOUTH YUBA RIVER CITIZENS LEAGUE and FRIENDS OF THE RIVER, NO. CIV. S-06-2845 LKK/JFM Plaintiffs, 13 v. 14 15 O R D E R NATIONAL MARINE FISHERIES SERVICE, et al., 16 Defendants. / 17 18 Plaintiffs successfully challenged a Biological Opinion issued 19 by the National Marine Fisheries Service related to two dams on the 20 South Yuba River operated by the Army Corps of Engineers. Pending 21 before the court is Plaintiffs’ motion for a 22 supplemental order directing the Federal Defendants to pay the 23 attorneys’ fees and costs awarded by the court. Pls’ Mot., ECF No. 24 491. 25 26 For the reasons provided below, the court denies Plaintiffs’ motion. 1 Dockets.Justia.com 1 I. BACKGROUND 2 On March 27, 2012, this court determined that Plaintiffs are 3 “entitled to recover fees and costs in the amount of $1,875,951.20 4 from the federal defendants.” Order, ECF No. 469. 5 By order issued on May 31, 2012, this court awarded Plaintiffs 6 $1,705 in supplemental fees and required Defendants to “pay all 7 fees due no later than ninety (90) days from the issuance of th[e] 8 order, and . . . file a declaration with the court stating that 9 they have done so.” Order, ECF No. 475, at 4. 10 On July 30, 2012, Defendants filed a notice of appeal of this 11 court’s May 31, 2012 order, as well as “all interlocutory orders 12 and decisions contributing to that order, including, but not 13 limited to, Docket No. 469 (March 27, 2012).” 14 Appeal, ECF No. 481. Defs’ Notice of 15 On July 30, 2012, Defendants filed a “motion for stay of the 16 May 31, 2012 order pending the outcome of any appeal if authorized” 17 by the Solicitor General. 18 alternative, Defendants requested that the court “modify its order 19 . . . to require Federal Defendants to submit a request to the 20 Treasury Department for the payment of all fees due by August 27, 21 2012” because the “disbursement of judgment appropriations is 22 neither controlled nor administered by Federal Defendants or the 23 Department of Justice” and, instead, “the actual ‘payment of final 24 judgments rendered by a district court . . . against the United 25 States shall be made on settlements by the Secretary of the 26 Treasury.’” Id. (citing 28 U.S.C. § 2414). Defs’ Mot., ECF No. 482, at 2. 2 In the 1 On August 29, 2012, the court granted Federal Defendants’ 2 motion for modification of the court’s May 21, 2012 order. The 3 court provided, “The language of the Order is modified to require 4 Federal Defendants to submit a request to the Treasury Department 5 for the payment of all fees due by September 4, 2012. 6 days of the issuance of this order, defendants SHALL inform the 7 court of the status of the payment to plaintiffs.” 8 490. Within 30 Order, ECF No. 9 On September 28, 2012, Federal Defendants filed a notice 10 informing the court of the status of the payment of attorneys’ fees 11 to Plaintiffs. 12 attested, inter alia, that: (1) “[t]he Justice Department submitted 13 the required forms to the Judgment Fund Branch of the Financial 14 Management 15 Treasury, and pursuant to the Court’s modified order, on September 16 4, 2012, requested payment of the Court-awarded attorney fees and 17 costs”; 18 Financial Management Service, a bureau of the U.S. Department of 19 the Treasury] had a telephonic conference with Plaintiffs’ counsel 20 on September 27, 2012,” during which “government counsel explained 21 that Treasury is statutorily prohibited from paying the fee order 22 at this time because Federal Defendants had appealed that order, 23 and it was thus not a ‘final judgment’ as Congress had defined the 24 term for purposes of certifying payment from the Judgment Fund.” 25 Oliphant Decl., ECF No. 494, Att. 1, at 2. 26 Defs’ Notice, ECF No. 494. Service, and (2) a bureau “[c]ounsel of for the Federal Defendants U.S. Federal Department Defendants of and the [the Federal Defendants also submitted a letter from Michael 3 1 Collota, Deputy Chief Counsel of the Department of the Treasury, 2 Financial Management Service, to S. Jay Govindan, Assistant Chief 3 of 4 Resources Division, addressing why Federal Defendants’ submitted 5 claim for attorneys fees and costs had been rejected. 6 Letter, ECF No. 494, Att. 1, at 5. 8 9 10 11 12 14 U.S. Department of Justice, Environmental & Natural Collota Collota stated: [T]he fact that this award of attorney fees has been appealed by the Government means that it is not a final judgment for Judgment Fund purposes. As with any other appropriation, the Judgment Fund is limited in use to the specific purpose (or purposes) that Congress has specified. Here, the Judgment Fund appropriation is limited to the payment of “final judgments.” . . . . Since the Government has noticed an appeal of this judgment, it is not final and the Judgment Fund appropriation is not legally available to pay it. 7 13 the Id. On September 20, 2012, Plaintiffs filed the instant motion for 15 a supplemental order on attorneys fees and costs. Pls’ Mot., ECF 16 No. 491. 17 order implicitly “denied the Federal Defendants’ request for a 18 stay” of the orders awarding fees and costs pending appeal. 19 at 3. Plaintiffs further contest the Treasury Department’s denial 20 of payment pending appeal of the fee award and argue that “[t]he 21 United States has thus unilaterally granted itself the stay of the 22 obligation to pay the attorneys fees and costs pending its Ninth 23 Circuit appeal that the Federal Defendants sought from this Court 24 and which this Court denied.” 25 “clarifying that the Treasury Department cannot decide unilaterally 26 to grant the United States a stay of the obligation to pay the Plaintiffs contend that this court’s August 29, 2012 Id. at 4. 4 Id. Plaintiffs seek an order 1 attorneys fees and costs awarded by the Court and that the Treasury 2 Department must instead pay the attorneys fees and costs by a date 3 certain.” Id. at 5. II. ANALYSIS 4 5 As a preliminary matter, the court finds that the Federal 6 Defendants have complied with the court’s August 29, 2012 order by 7 submitting a request to the Treasury Department for the payment of 8 all fees due by September 4, 2012, and by informing the court of 9 the status of do the not payment control to or Plaintiffs. administer the Because Federal 10 Defendants disbursement of 11 judgment appropriations, the court declines to require a date 12 certain for the payment of attorneys fees and costs. 13 What remains at issue, however, is the Treasury Department’s 14 refusal to pay the attorneys fees and costs ordered by this court, 15 based on its interpretation of 31 U.S.C. § 1304 and 28 U.S.C. § 16 2414. 17 The Judgment Fund statute, 31 U.S.C. § 1304, provides in 18 pertinent part that “(a) Necessary amounts are appropriated to pay 19 final judgments, awards, compromise settlements, and interest and 20 costs specified in the judgments or otherwise authorized by law 21 when-(3) the judgment, award, or settlement is payable . . . (A) 22 under section 2414 . . . of title 28.” 23 Section 2414 provides that “payment of final judgments 24 rendered by a district court . . . against the United States shall 25 be made on settlements by the Secretary of the Treasury” and that 26 “[w]henever the Attorney General determines that no appeal shall 5 1 be taken from a judgment or that no further review will be sought 2 from a decision affirming the same, he shall so certify and the 3 judgment shall be deemed final.” 4 The parties contest the implications of Rosenfeld v. United 5 States, 859 F.2d 717 (9th Cir. 1988), in which the Ninth Circuit 6 interpreted the “final judgment” provisions of the Judgment Fund 7 statute 8 presented. and Section 2414, as applied to the situation here In Rosenfeld, the Ninth Circuit reviewed the propriety of a 9 10 district 11 government in an action arising under the Freedom of Information 12 Act (“FOIA”). 13 of 14 jurisdiction to order it to pay an interim fee award because 31 15 U.S.C. § 1304(a) permits payment only when a judgment is final 16 under 28 U.S.C. § 2414, and an interim fee award does not become 17 a “final judgment” for purposes of 31 U.S.C. § 1304 and 28 U.S.C. 18 § 2414 until the Attorney General certifies an intention not to 19 appeal or exhausts the government's appeals. 20 Ninth Circuit reasoned that “[i]f attorney fee awards cannot be 21 paid until a final judgment is rendered, and if interim fee awards 22 are not appealable orders, then payment of interim awards may be 23 postponed until the conclusion of the litigation, rendering them 24 no longer ‘interim’” and, thus, “making nonsense of the concept of 25 an interim award.” 26 that “[s]ince Congress waived sovereign immunity from attorney's its court’s grant of an interim fee award against the On appeal, the government argued that, in violation sovereign immunity, the Id. at 726, 727. 6 district court had lacked Id. at 726. The Thus, the Circuit determined 1 fees in the FOIA actions . . . no additional waiver is required for 2 interim fees. 3 limitation on the government's waiver of sovereign immunity.” Id. 4 at 726-27. The Judgment Fund statute is not a superseding The Ninth Circuit further provided: 9 The government's insistence that the Judgment Fund is the only possible source of payment of an interim fee award is simply wrong. The Judgment Fund statute is itself a mechanism for facilitating payment of judgments, not a further limitation on the United States' waivers of sovereign immunity. . . . We also note that when a court has rejected the Judgment Fund argument, the government has managed to pay the interim fee award. 10 Id. at 727 (citing Jurgens v. EEOC, 660 F.Supp. 1097, 1102 11 (N.D.Tex. 1987) (“When faced with a citation for contempt of court, 12 however, the defendants in Shafer [v. Commander, Army & Air Force 13 Exchange Service, No. CA 3-76-1246-R, 1985 WL 9492 (N.D.Tex. Dec. 14 3, 1985)] made immediate payment. The court believes that the EEOC 15 can also arrange for immediate payment of this court's interim 16 award.”); see also Trout v. Garrett, 891 F.2d 332, 335 (D.C.Cir. 17 1989) (finding that the “payment of final judgments” language in 18 section 2414, incorporated by reference into the Judgment Fund 19 statute, was not designed “to retract or limit duly enacted waivers 20 of sovereign immunity”); but see Office of Personnel Management v. 21 Richmond, 496 U.S. 414, 430, 110 S.Ct. 2465, 110 L.Ed.2d 387 (1990) 22 (“[I]t would be most anomalous for a judicial order to require a 23 Government official . . . to make an extrastatutory payment of 24 federal funds. 25 imprisonment, for any Government officer or employee to knowingly 26 spend money in excess of that appropriated by Congress.”). 5 6 7 8 It is a federal crime, punishable by fine and 7 1 Here, the attorneys fees and costs awarded to Plaintiffs were 2 not an award of interim fees, but instead, were awarded following 3 a final judgment on the merits of Plaintiff’s case. 4 Circuit’s holding in Rosenfeld is, therefore, not applicable to the 5 situation here presented. 6 provisions of 31 U.S.C. § 1304 and 28 U.S.C. § 2414, the court 7 stays the fee award pending resolution of Defendants’ appeal.1 10 In observance of the “final judgment” 2 III. CONCLUSION 8 9 The Ninth Accordingly, the court ORDERS as follows: [1] Plaintiffs’ motion for a supplemental order directing 11 the Federal Defendants to pay the attorneys’ fees and 12 costs awarded by the court, ECF No. 491, is DENIED. 13 [2] Final Judgment in this case has been entered, as of 14 issuance of this court’s May 31, 2012 Order, ECF No. 15 475. 16 [3] The fee awards set forth in the court’s March 27, 2012 17 and May 31, 2012 orders are STAYED pending resolution 18 of Defendants’ appeal. 19 [4] The parties SHALL notify the court upon resolution of the Federal Defendants’ appeal or, if the Office of 20 21 22 23 24 25 1 In doing so, the court does not concur with the Treasury Department’s view, that it is free to disregard a court order. Rather, unlike the executive branch, this court sees little point in initiating a crisis between the judiciary and the executive branch. Nonetheless, those in the executive branch ought not to take this as a precedent. 2 26 To think that an unauthorized appeal supports the Treasury’s position is, to say the least, remarkable. 8 1 the Solicitor General decides not to approve Federal 2 Defendants’ appeal, upon the withdrawal of such 3 appeal. 4 5 [5] The motion hearing currently set for November 5, 2012 at 10:00 a.m. is VACATED. 6 IT IS SO ORDERED. 7 DATED: November 1, 2012. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 9
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