San Francisco Baykeeper v. Sunnyvale

Background

San Francisco Baykeeper brought citizen-enforcement claims under the Clean Water Act against the City of Sunnyvale and the City of Mountain View. Baykeeper alleged that the Cities unlawfully discharged bacteria pollution from their municipal storm sewer systems into San Francisco Bay and its tributaries.

The Cities held federally enforceable permits governing those discharges. One permit provision, Receiving Water Limitation B.2, prohibited discharges that caused or contributed to violations of applicable water-quality standards. Baykeeper sought partial summary judgment concerning alleged violations on January 17, February 4, and February 13, 2019.

In a September 12, 2022 order, the court granted Baykeeper’s motion for partial summary judgment and denied the Cities’ cross-motion for summary judgment based on standing. The court found that the Cities violated Receiving Water Limitation B.2 on the three sampling days and that Baykeeper adequately pleaded an ongoing violation for jurisdictional purposes. The court later denied the Cities’ motion for reconsideration.

Fee request and parties’ arguments

Baykeeper sought an interim award of $1,828,600, consisting of $1,591,055.95 in attorney’s fees, $168,002 in expert fees, and $69,542.79 in other litigation costs. It argued that the partial summary-judgment order made it a prevailing party entitled to fees and costs under 33 U.S.C. § 1365(d).

The Cities argued that the motion was procedurally barred, that Baykeeper was not a prevailing party, and that the requested amount was unreasonable. They also asked that any interim award be conditioned on Baykeeper posting a bond.

Court’s analysis

The court rejected the Cities’ argument that the fee motion was untimely under Federal Rule of Civil Procedure 54 and the corresponding local rule. The court explained that those rules concern fees sought after a judgment and that the partial summary-judgment order was not an appealable judgment for purposes of those rules.

Under the Clean Water Act, a court may award reasonable attorney’s fees and costs to a prevailing or substantially prevailing civil plaintiff when an award is appropriate. A plaintiff is a prevailing party when it obtains actual, judicially enforceable relief on the merits that materially changes the parties’ legal relationship. A prevailing plaintiff is generally entitled to reasonable fees unless special circumstances would make an award unjust.

The court held that Baykeeper qualified as a prevailing party. Although the partial summary-judgment order did not establish particular remedies or impose a current legal obligation on the Cities, it established that the Cities violated the Clean Water Act on the three sampling days. The court concluded that this was a significant litigation success that provided a benefit Baykeeper sought.

The court also found no special circumstances justifying denial of fees. It rejected the Cities’ arguments that the partial nature of the summary-judgment order or the absence of final relief prevented an award. However, the court was not yet certain that all of Baykeeper’s requested fees were reasonably related to securing liability at summary judgment. Baykeeper had supplied summaries but not the underlying billing records.

Disposition

The court GRANTED IN PART Baykeeper’s motion for an interim award of attorney’s fees and costs. It ruled that Baykeeper was a prevailing or substantially prevailing party entitled to an appropriate fee award under 33 U.S.C. § 1365(d). The court required Baykeeper to provide an in-camera copy of the underlying billing records within 21 days and deferred deciding the final amount of the award. The court required no further briefing on the request’s reasonableness and did not reach the Cities’ request for a bond because the award amount had not yet been determined.