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1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF CALIFORNIA

SODA MOUNTAIN WILDERNESS

COUNCIL and KLAMATH FOREST

ALLIANCE,

NO. CIV. S-04-2583 LKK/CMK

Plaintiffs,

v. O R D E R

GAIL NORTON, et al.,

Defendants.

 /

Pending before the court is plaintiffs’ motion for an award

of attorneys’ fees and costs pursuant to 28 U.S.C. § 2412(a)-(d).

The court decides the matter based on the papers and pleadings

filed herein. 

I.

BACKGROUND FACTS

Plaintiffs, Soda Mountain Wilderness Council (“SMWC”) and the

Klamath Forest Alliance (“KFA”), brought suit against the Bureau

of Land Management (“BLM”) and its relevant officials

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1

 The court incorporates by reference all the relevant facts

from the March 23, 2006 order granting plaintiffs’ motion for

summary judgment.

2

 "[F]ees and other expenses" includes the reasonable

expenses of expert witnesses, the reasonable cost of any study,

2

(“defendants”) and parent agency, alleging violations of the

National Environmental Policy Act (“NEPA”), the Administrative

Procedure Act (“APA”), and the Federal Land Policy and Management

Act (“FLPMA”). The suit originated out of a proposed amendment to

the land management plan for the Redding Resource Area concerning

acquisitions of land for the Horshoe Ranch Wildlife Area (“HRWA”).

On March 23, 2006, the court issued an order granting plaintiffs’

motion for summary judgment and denying defendants’ motion for

summary judgment on the question of compliance with FLPMA and

NEPA.1

II.

STANDARD

The Equal Access to Justice Act (EAJA) provides that a court

shall award reasonable attorney’s fees and expenses to a prevailing

party in any civil action, unless the government demonstrates that

its position was substantially justified, “or that special

circumstances made an award unjust.” 28 U.S.C. § 2412(d)(1)(A).

 The EAJA places a ceiling on attorney’s fees of $125.00 per

hour “unless the court determines that an increase in the cost of

living or a special factor, such as the limited availability of

qualified attorneys for the proceedings involved, justifies a

higher fee.” See 28 U.S.C. § 2412(d)(2)(A).2 The “cost of living”

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analysis, engineering report, test, or project which is found by

the court to be necessary for the preparation of the party's case,

and reasonable attorney fees.” 28 U.S.C. § 2412(d)(2)(A).

3

adjusted EAJA rate is calculated by enhancing the EAJA’s rate of

$125 per hour by the consumer price index (CPI-U) for urban

consumers that is current in the year when the fee is earned. 

Sorenson v. Mink, 239 F.3d 1140, 1148 (9th Cir. 2001). 

The EAJA’s “special factor” exception applies only in limited

circumstances where “attorneys having some distinctive knowledge

or specialized skill needful for the litigation in question.” Id.;

Pierce v. Underwood, 487 U.S. 552, 572 (1988). Additionally, the

attorney seeking EAJA fees must show that the distinctive knowledge

and skill are “in some way needed in the litigation and cannot be

obtained everywhere at the statutory rate.” See Ramon-Sepulveda

v. Immigration and Naturalization Serv., 863 F.2d 1458, 1463 (9th

Cir. 1988). 

III.

ANALYSIS

A. PREVAILING PARTY STATUS

In the case at bar, plaintiffs were clearly the prevailing

party. Under the EAJA, a “prevailing party” is “one who has gained

by judgment or consent decree a material alteration of the legal

relationship of the parties.” Perez-Arellano v. Smith, 279 F.3d

791, 794 (9th Cir. 2002)(citing Buckhannon Bd. & Care Home, Inc.

v. West Virginia Dep’t. of Health & Human Res., 532 U.S. 598

(2001)). 

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3

 Plaintiffs’ fourth claim for relief, alleging a failure to

include all interested parties in the initial scoping process for

the RRMP amendment, was dismissed after they failed to raise the

issue in their motion for summary judgment and failed to respond

to it in their reply and opposition. Order at 54.

4

A material “alteration” occurs when the party is successful

“on any significant issue in litigation which achieves some of the

benefit the parties sought in bringing suit.” Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983); see also Nat’l Audubon Soc’y

v. United States Forest Serv., 46 F.3d 1437, 1448 n. 10 (9th Cir.

1994). A plaintiff need not succeed on every claim to be entitled

to fees and “is a prevailing party by succeeding on any significant

issue which achieves some of the benefit sought.” Mantolete v.

Bolger, 791 F. 2d 784, 786 (9th Cir. 1986). Because challenges in

environmental cases are usually limited to reviewing governmental

agencies’ decisions, “plaintiffs ‘prevail’ in environmental

litigation when they obtain a court judgment that identifies a

substantial flaw with an agency’s interpretation of law or weighing

of facts.” Golden Gate Audubon Soc’y v. United States Army Corps

of Engineers, 738 F.Supp. 339, 343 (N.D. Cal. 1988). 

In the case at bar, defendants concede that plaintiffs were

the prevailing party. See Defs.’ Opp’n at 3:27. Indeed, the court

granted summary judgment for the plaintiffs on all but one

substantive issue.3 The court found that, “the defendants have

failed to conduct adequate environmental review as required by

FLPMA and NEPA” and ordered defendants to “return to the drawing

board and prepare either an adequate EA [Environmental Assessment]

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or a complete EIS [Environmental Impact Study] which contains a

clear statement of purpose and need, which fully analyzes the

direct, indirect and cumulative impacts of the amendment, and which

examines a complete set of reasonable alternatives . . . tailored

to meet the goals set out in the purpose and need statement.” Soda

Mountain Wilderness Council v. Norton, CIV. S-04-2583, slip op. at

54 (E.D. Cal. Mar. 23, 2006)(Karlton, J.)(“Order”). This result

more than suffices to establish plaintiffs as the prevailing party.

The court next determines if the government’s position was

substantially justified.

B. SUBSTANTIAL JUSTIFICATION OF THE UNDERLYING ACTION AND

LITIGATION POSITION

The standard for determining whether the government’s

underlying conduct was substantially justified is one of

“reasonableness.” See Foster v. Tortelotte, 704 F.2d 1109, 1112

(9th Cir. 1983). The government’s position is “substantially

justified” if it “has a reasonable basis in law and fact.” See

Ramon-Sepulveda, 863 F.2d at 1459. (citing Pierce, 487 U.S. at

565). The burden of proving the substantial justification

exception under the EAJA rests with the government. See Love v.

Reilly, 924 F.2d 1492, 1495 (9th Cir. 1991).

Defendants maintain that their case as whole was substantially

justified. First, defendants argue the court’s comments during

oral argument “plainly indicate that the Government’s position was

‘justified to a degree that could satisfy a reasonable person.’”

////

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4

 Defendants excerpted several comments that the court made

during oral argument that related to standing. For example,

defendants point to a moment when the court exclaimed that the

standing issue was “not clear,” Reporter’s Transcript (“RT”) at 4,

and that “it is a very subtle and difficult problem.” RT at 18. 

5

 Indeed, the court raised the standing question on its own

as it was not advanced by the defendants. Order at 26.

6

Defs.’ Opp’n at 4.4 Second, defendants argue that their position

was substantially justified because they “reasonably argued that

plaintiffs’ injury-in-fact was insufficient to support standing.”

Id. at 5. Lastly, defendants argue that their position was

justified because they adequately complied with NEPA. Id. at 5.

The court cannot agree.

First, the comments made by the court during oral argument do

not support defendants’ contention that “the Government’s position

was ‘justified to a degree that could satisfy a reasonable

person.’” Defs.’ Opp’n at 4. The comments identified by

defendants pertain only to the court’s original concerns that

plaintiffs may have lacked standing to bring suit.5 Indeed, the

court sought supplemental briefing on the issue of standing. See

Dec. 6, 2005 Order. Once the court was properly briefed on the

standing issue, the court concluded that “[p]laintiffs have

demonstrated a host of different concerns which may be impacted by

the proposed amendment,” and “the court is therefore satisfied that

plaintiffs have demonstrated that they may suffer an injury-in-fact

that is within the ‘zone of interests’ that NEPA and FLMPA were

designed to protect.” Order at 27. As the order clearly sets

forth, once supplemental briefing was provided on standing, the

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7

issue became less subtle and less difficult to resolve. In short,

the court’s comments about standing during oral argument do not

support defendants’ contention that their position as a whole was

substantially justified.

Second, the court cannot agree that defendants’ position was

substantially justified because they “reasonably argued that

Plaintiff’s injury-in-fact was insufficient to support standing.”

Id. at 5. As discussed above, the court explicitly stated that it

was “satisfied that plaintiffs have demonstrated that they may

suffer an injury-in-fact that is within the ‘zone of interests’

that NEPA and FLMPA were designed to protect.” Order at 27.

Therefore, the court concludes that this argument also fails to

prove a substantial justification for defendants’ position as a

whole.

Lastly, defendants argue that their position was justified

because they adequately complied with NEPA. Id. at 5. Defendants

maintain that they adequately “prepared an EA and, upon a

determination that the proposed action would not significantly

affect the environment, made a ‘finding of no significant impact.’”

Defs.’ Opp’n at 5. This argument is unavailing.

The March 23, 2006 order is replete with examples of

defendants failing to complying with NEPA. Specifically, the court

found defendants failed to comply with the NEPA requirement that

the EA “include brief discussions of the need for the proposal, of

alternatives as required by § 102(2)(3), of the environmental

impacts of the proposed action and alternatives, and a listing of

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8

agencies and persons consulted.” Order at 33 (quoting 40 C.F.R.

Pt. 1508.9). The court observed that this failure to clearly

define the scope and purpose of its actions “raise[d] serious

questions as to the adequacy of the agency’s action,” also noting

that defendants’ reticence made any analysis of the propriety of

their actions almost impossible. Order at 35. 

The court also found that the impact analysis in the EA was

inadequate. The court explained that the “cumulative impacts

analysis in the EA under consideration is a page long. It does not

mention, nor discuss, any past, present or future projects being

conducted in the area that might result in a cumulative impact.”

Order at 44. This failure to provide adequate information is also

a substantial violation of NEPA. See, e.g., Thomas v. Peterson,

841 F.2d 332, 335-36 (9th Cir. 1988)(indicating that a failure to

provide a cumulative impact analysis was a substantial violation

of NEPA). 

The court also held that defendants failed to properly

consider alternatives to their plans as required by law. See Order

at 40. The court explained defendants’ obligation under 40 C.F.R.

Pt. 1502.14(a) was to identify and briefly explain, which, if any,

alternatives were considered for analysis but then rejected. The

defendants completely failed to meet these obligations. Order at

41. 

Lastly, the court found that overall, defendants’ actions

“fail[] to draw rational connections between the facts found and

the decision made.” Order at 53. The court concluded that

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6

 Plaintiffs qualify as a “party” entitled to an award under

the EAJA because they are tax-exempt organizations, have a net

worth of “substantially less than $7,000,000 in assets” and less

than 500 employees. Id. at 6; Dec. of Kimberly Baker at 2; Dec.

of David Willis at 2.

9

defendants “failed to conduct adequate environmental review as

required by FLPMA and NEPA.” Order at 54. 

Accordingly, the court finds that defendants failed to provide

a substantial justification in law or fact for their underlying

actions, as required under the EAJA.

C. ATTORNEYS’ FEES AND COSTS

Because plaintiffs are the prevailing party, defendants’

position was not substantially justified, and an award of fees

would not be unjust, the court must award “fees and other

expenses.” See 28 U.S.C. § 2412(d)(1)(A).6 The phrase “fees and

other expenses” is defined in the statute as constituting

“reasonable expenses of expert witnesses, the reasonable cost of

any study, analysis, engineering report, test or project which is

found by the court to be necessary for the preparation of the

party’s case, and reasonable attorney fees.” 28 U.S.C. 

§ 2412(d)(2)(A). 

Plaintiffs seek $177,624.25 in attorneys’ fees and $2,503.00

in expenses, for a total of $180,127.25. Pls.’ Mot. For Att’ys

Fees at 18. Plaintiffs were jointly represented in this action by

two attorneys, Mr. William H. Sherlock of Eugene, Oregon (lead

counsel) and Ms. Sharon E. Duggan of Oakland, California.

////

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7

 Note that defendants do not oppose awarding fees to the law

student. Moreover, there is ample case law supporting the

proposition that attorneys’ fees include work done by law students

and paralegals. Indeed, the Supreme Court, and lower courts, have

approved the inclusion of fees for law clerks and law students in

fee awards under EAJA and analogous fee-shifting statutes, on the

theory that their work contributed to their supervising attorney's

work product, and could be done effectively by non-attorneys for

a lower rate, thereby lowering overall litigation costs. See

Missouri v. Jenkins, 491 U.S. 274, 288 n. 10 (1989); Cook v. Brown,

68 F.3d 447 (Fed. Cir. 1995); Miller v. Alamo, 983 F.2d 856, 862

(8th Cir. 1993); In re Application of Mgndichian, 312 F.Supp.2d

1250, 1266 (C.D. Cal. 2003). 

10

Plaintiffs request attorneys fees of $400 per hour for Sherlock,

$425 per hour for Duggan, and $70 per hour before graduation and

$100 per hour after graduation for Pamela Hardy, a certified law

student.7

1. Hourly Rate for Attorneys Fees

The EAJA as amended in 1996 sets a base rate of $125 per hour.

28 U.S.C. § 2412(d)(2)(A). Section 2412(d)(2) provides that

"attorney fees shall not be awarded in excess of $ 125 per hour

unless the court determines that an increase in the cost of living

or a special factor, such as the limited availability of qualified

attorneys for the proceedings involved, justifies a higher fee."

28 U.S.C. § 2412(d)(2); United States v. 22249 Dolorosa St., 190

F.3d 977, 985 (9th Cir. 1999). Plaintiffs request both a cost-ofliving increase and a “special factors” increase based on the

“limited availability of qualified attorneys for the proceedings

involved.” Pls.’ Mot. For Att’ys Fees at 13.

////

////

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8

 These rates are calculated by “multiplying the basic EAJA

rate by the consumer price index for urban customers (CPI-U), and

then dividing the product by the CPI-U in the month the cap was

imposed.” Soreson, 239 F.3d at 1148. The “lodestar” for each year

in which plaintiffs’ attorneys worked is calculated by dividing the

“West Urban” CPI-U for 2004 (191.9), 2005 (197.1) and 2006 (205.3

by April, 2006) by 156.4 - the CPI-U for March, 1996, when the cap

was imposed - and multiplying each result by $125 to get the

adjusted rate. Id. 

11

a. Cost of Living Increase

Plaintiffs request a cost of living increase in their hourly

wages in the amount of $153.38 for 2004, $157.53 for 2005, and

$164.08 for 2006.8

 The court agrees that an increased award for

inflation is proper. 

b. “Special Factors” Increase

Plaintiffs assert that they satisfy the requirements allowing

recovery above the statutory limit, adjusted for inflation. The

Ninth Circuit has consistently recognized that environmental

litigation is a specialty area justifying an upward adjustment.

Love v. Reilly, 924 F.2d at 1496. The Circuit has also set out a

three-part test to determine whether there is a limited

availability of qualified attorneys which justifies an enhanced

rate: “First, the attorney [claiming the enhanced rate] must

possess distinctive knowledge and skills developed through a

practice specialty. Secondly, those distinctive skills must be

needed in the litigation. Lastly, those skills must not be

available elsewhere at the statutory rate.” Love, 924 F.2d at

1495. 

////

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9

 Both Duggan and Sherlock provide the declaration of Michael

D. Axline, an attorney with 24 years of litigation experience in

primarily federal environmental law, to support their contentions.

Dec. of Michael D. Axline. Axline contends that the hourly rates

requested by Sherlock and Duggan are reasonable, “commensurate with

their skill and experience, and commensurate with the rates charged

by other attorneys and law firms with similar skill and

experience.” Id.

12

Defendants argue that if any award is made, the statutory EAJA

cap should be applied. Defs.’ Opp’n at 8. Specifically, they

argue that plaintiffs “provided no convincing evidence that

specialized skills in the environmental litigation were unavailable

elsewhere in Sacramento for the statutory rate.” Defs.’ Opp’n at

9. The court cannot agree.

Plaintiffs have established that they satisfy the requirements

set forth in Love v. Reilly. Both attorneys have distinctive

knowledge and skills in the area of environmental law. Mr.

Sherlock has worked in environmental law for sixteen years. Dec.

of William H. Sherlock at 2. He worked as lead or co-counsel in

ten separate federal environmental cases, and specializes in state

and federal environmental law, land use, and real property issues.

Id. 

Ms. Duggan has similar distinctive knowledge and skills

regarding environmental law. She has practiced environmental law

for more than 20 years, has written law review articles on

environmental law and taught environmental law courses at the

University of San Francisco. Dec. of Sharon E. Duggan at 4-5.9

Plaintiffs also request $70 per hour before graduation and

$100 per hour after graduation for Pamela Hardy, a certified third

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year law student. Pls.’ Mot. For Att’ys Fees at 16. Hardy

declares that she specializes in environmental law. Dec. of Pamela

Hardy at 2. Specifically, she declares she earned a certificate

of completion in the Environmental and Natural Resources law

program at the University of Oregon School of Law and chose to

research the “debate about the boundaries of the Horseshoe Ranch

Wildlife Area.” Id.

Plaintiffs’ attorneys assert they satisfy the second criterion

for enhanced fees because their “distinctive skills” were needed

in this case. Specifically, they cite to Axline’s declaration,

which states that after reviewing the case file, including the

parties’ legal memorandum as well as the court’s orders,

plaintiffs’ case “clearly required the participation of lawyers who

have a specialized understanding and skill in the field of

environmental law, given the intricacies of the relevant

precedents.” Dec. of Michael Axline at 2-3; see also Dec. of

William Sherlock at 3. The court agrees that plaintiffs’

attorneys’ special skills and distinctive knowledge were required

in this litigation. 

Plaintiffs also maintain they satisfy the third criterion for

enhanced fees because their attorneys’ skills were unavailable at

the base rate under EAJA of $125 per hour. See Dec. of David

Willis at 2; see also Dec. of Kimberly Baker at 3. Plaintiffs

provide the declarations of David Willis and Kimberly Baker, both

of which state that “there was no other attorney available with the

level of specialized skill and experience in environmental law and

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10 Duggan declares that she received attorney’s fees of up to

$400.00 through settlements of federal and state cases, but does

not provide evidence that a court has ever granted her that much.

Dec. of Sharon E. Duggan at 6. Sherlock provides no evidence of

any previous hourly rates near $400 granted by a local court. See

Dec. of William Sherlock. 

14

with the specific knowledge and history of the Cascade-Siskiyou

National Monument and Horseshoe Ranch Wildlife Area who [they]

believed was necessary to win this case for any less than this full

fee award based on prevailing rates.” Dec. of David Willis at 2-3;

Dec. of Kimberly Baker at 3. The court finds that plaintiffs

provided sufficient evidence to establish that there were no other

attorneys of comparable skill and knowledge willing to take the

case at the statutory level. There is no other evidence in the

record to suggest otherwise, and so, plaintiffs have met the

criterion for enhanced fees. See Ramon-Sepulveda, 863 F.2d at

1463.

Based on the aforementioned “special circumstances,” the court

finds that an enhanced rate for both attorneys of $325 per hour is

a reasonable market-rate for the Sacramento area. See Mendenhall

v. NTSB, 213 F.3d 464, 471 n.5 (9th Cir. 2000)(stating that

“[u]nder Ninth Circuit case law, . . ., the relevant legal

community is the ‘forum district’”). The court notes that

plaintiffs have failed to provide any specific evidence of local

courts awarding fees in excess of $275.00 in comparable cases.10

Indeed, the court notes that Ms. Duggan previously sought and

received an award of $275 per hour from this very court only two

years ago in an EAJA case. See Californians For Alternatives to

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11 The lodestar figure is arrived at by multiplying the

reasonable hours expended by a reasonable hourly rate. See

Hensley, 461 U.S. at 433.

12 Sherlock seeks a total of 358.6 hours, Duggan seeks a

total of 8.45 hours, and Hardy seeks a total of 429.5 hours,

including a deduction of 100 hours for work “deemed clerical,

organizational, or excessive because of her relatively recent entry

to the field.” Pls.’ Mot. For Att’ys Fees at 17-18.

15

Toxics v. Dombeck, No. CIV. S-00-0605 LKK/PAN, slip op. at 10 (E.D.

Cal. Jan. 30, 2004)(Karlton, J.). 

 As for the certified law student, the court finds that a rate

of $70 pre-graduation and $100 post-graduation is a fair and

reasonable rate for a third-year certified law student under the

circumstances. 

2. Reasonableness of Hours

The court must next determine if the number of hours billed

was reasonable. In arriving at the lodestar figure,11 the court

shall exclude hours that are “excessive, redundant, or otherwise

unnecessary . . . .” Hensley v. Eckerhart, 461 U.S. 424, 434

(1983). 

Plaintiffs’ attorneys and the certified law student seek a

total of 796.55 hours.12 Defendants argue that 796.55 hours is an

unreasonable amount of hours to bill. They specifically argue that

there “was not a lot work required in what was in essence a one

issue case.” Defs.’ Opp’n at 9. Defendants, however, identify

only two areas where they challenge the hours billed. First,

defendants argue that 5.9 hours billed for filing this case in the

Northern District of California should be subtracted. In their

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26 13 Defendants do not contest any award of costs and expenses.

16

reply brief, plaintiffs concede that subtracting 5.9 hours is

appropriate and therefore, the court takes this subtraction into

account in arriving at the total costs. 

Second, defendants argue that the court should subtract the

six hours for “legal research on the FACA claim.” Defs.’ Opp’n at

9-10. The court cannot agree. The research and record review

necessary to make the FACA claim relate directly to plaintiff’s

larger NEPA claims. “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.” Hensley, 461 U.S. at 440. As the

FACA claim was related to the NEPA claim, and plaintiff won

substantial relief, the court finds these six hours were reasonably

billed. 

The court concludes that the hours billed are in fact

reasonable given the expansive record and novel issues. The court

finds that 790.65 hours is a reasonable number of hours for the

lodestar calculation.

3. Costs13

EAJA authorizes the recovery of “costs” and “fees and

expenses.” 28 U.S.C. § 2412(a)(1); § 2412(d)(1)(A). Awards of

costs that are ordinarily billed to a client are routine under all

other fee statutes, and the expenses enumerated in 28 U.S.C. 

§ 2412(d)(2)(A) are set forth as examples, not as an exclusive

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list. Int’l Woodworkers, Local 3-98 v. Donovan, 792 F.2d 762, 767

(9th Cir. 1986). 

Plaintiffs request a total of $2,503.00 in costs and other

expenses, specifically: filing fees, transcripts, postage,

supplies, telephone, and travel expenses. Pls.’ Mot. For Att’ys

Fees at 22. Sherlock is requesting $1,640.93 of that total for

filing fees, photocopy expenses, postage, and on-line legal

research fees. Dec. of William H. Sherlock at 5. Duggan is

seeking $156.17 of that total for photocopying expenses, postage,

and delivery services. Dec. of Sharon E. Duggan at 7. 

The court notes however, that there is a mathematical error

in plaintiffs’ costs calculations with respect to Hardy. 

Plaintiffs’ motion for attorneys fees lists the amount of costs at

$2,503.00. Pls.’ Mot. For Att’ys Fees at 22. However, the amount

declared by Hardy in her declaration exceeds the remaining balance

of $2,503.00 once Sherlock and Duggan’s costs have been subtracted

from the total. In other words, Hardy lists fees in Exhibit A of

her declaration, but her fees and expenses total $1,556.40, which

is more than double the $705.90 that remains after deducting

Sherlock’s and Duggan’s costs and expenses from the total of

$2,503.00. The court is reluctant to speculate as to the proper

amount and therefore adopts the lower of the two amounts, namely

the $2,503.00 amount set forth in the motion itself. 

Accordingly, the court grants plaintiffs $2,503.00 in costs

and expenses.

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Case 2:04-cv-02583-LKK -CMK Document 70 Filed 07/21/06 Page 17 of 18
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V.

ORDER

The court AWARDS attorneys fees and costs in the amount of

$150,469.75, as calculated below.

Reasonable

Hours

Reasonable

Market

Rates for

Sacramento

Lodestar Costs and

Expenses

Sherlock 352.7 $325/hr $114,627.50 $ 1,640.93

Duggan 8.45 $325/hr $ 2,746.25 $ 156.17

Hardy 411.9 $70/hr $ 28,833.00 $ 705.90

 17.6 $100/hr $ 1,760.00

Costs

TOTALS 790.65 $147,966.75 $ 2,503.00

Hearing on the motion, currently set for July 24, 2006, is

VACATED.

IT IS SO ORDERED.

 DATED: July 20, 2006.

Case 2:04-cv-02583-LKK -CMK Document 70 Filed 07/21/06 Page 18 of 18