FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NATURAL RESOURCES DEFENSE 

COUNCIL, INC.; THE INTERNATIONAL

FUND FOR ANIMAL WELFARE;

CETACEAN SOCIETY INTERNATIONAL

OCEAN FUTURES SOCIETY; JEANMICHEL COUSTEAU,

Plaintiffs-Appellees,

v.

DONALD C. WINTER, in his official

capacity as Secretary of the Navy;

UNITED STATES DEPARTMENT OF THE No. 07-55294

NAVY; CARLOS M. GUTIERREZ, in

D.C. No. his official capacity as Secretary  CV-06-04131-FMC of the Department of Commerce;

NATIONAL MARINE FISHERIES OPINION

SERVICE; WILLIAM HOGARTH, in his

official capacity as Assistant

Administrator for Fisheries of the

National Oceanic and Atmospheric

Administration; CONRAD C.

LAUTENBACHER, Jr., Vice Admiral,

in his official capacity as

Administrator of the National

Oceanic and Atmospheric

Administration,

Defendants-Appellants. 

Appeal from the United States District Court

for the Central District of California

Florence-Marie Cooper, District Judge, Presiding

12945
Argued and Submitted

June 6, 2008—Pasadena, California

Filed September 16, 2008

Before: William C. Canby, Jr., Jay S. Bybee, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

12946 NRDC v. WINTER
COUNSEL

Kathryn E. Kovacs, United States Department of Justice,

Environment & Natural Resources Division, Washington,

D.C., for the defendants-appellants. 

Richard B. Kendall, Irell & Manella LLP, Los Angeles, California; Joel R. Reynolds, Natural Resources Defense Council,

Inc., Santa Monica, California, for the plaintiffs-appellees. 

NRDC v. WINTER 12949
OPINION

MILAN D. SMITH, JR., Circuit Judge: 

Defendant-Appellant, Donald C. Winter (the Navy),

appeals the district court’s decision to award attorneys’ fees

to Plaintiffs pursuant to the Equal Access to Justice Act

(EAJA), 28 U.S.C. § 2412. The Navy claims that (1) the

amount of the award for some of the attorneys working on the

case should not have been enhanced above the statutory rate,

(2) the limited extent of Plaintiffs’ success merited a reduction in fees, and (3) the award of appellate fees was improper

because the fee application was filed in the district court, not

in the court of appeals. We conclude that the district court did

not abuse its discretion on the second and third issues. However, because we conclude that the standard used by the district court to determine the first issue constitutes an error of

law, we vacate the district court’s order awarding fees and

remand for additional fact finding and recalculation of fees in

accordance with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

A. The RIMPAC 2006 Suit

On June 28, 2006, the Natural Resources Defense Council

(NRDC), along with several other environmental groups (collectively, Plaintiffs) filed suit (hereinafter NRDC II) against

Winter, in his capacity as Secretary of the Navy, alleging that

the Navy had violated the National Environmental Policy Act

(NEPA), the Marine Mammal Protection Act (MMPA), and

the Administrative Procedure Act (APA). Plaintiffs also filed

an application for a temporary restraining order (TRO) and a

preliminary injunction to enjoin the Navy’s use of midfrequency active sonar during its Rim of the Pacific (RIMPAC) 2006 training exercise. RIMPAC 2006 was a major

multi-national Navy training exercise that took place in the

waters surrounding the Hawaiian Islands from June 26 to July

12950 NRDC v. WINTER
28, 2008. Starting July 6, the training included the use of midfrequency active sonar, which is known to disrupt some of the

marine mammals that live in those waters. Attorneys at the

California-based firm Irell & Manella LLP (Irell) provided

outside representation to the environmental groups. 

On June 30, the Navy invoked the national defense exemption contained in the MMPA, which had the effect of exempting all mid-frequency active sonar activity from compliance

with the MMPA. The Navy also stated its intent to comply

with the mitigation measures set forth in the Incidental

Harassment Authorization approved by the National Marine

Fisheries Service on June 27. 

On July 3, the district court granted the TRO on the NEPA

claim, enjoining the use of mid-frequency active sonar for ten

days pending a hearing on whether to grant a preliminary

injunction, and also ordered the parties to “meet and confer

. . . to determine if an agreement can be reached on mitigation

measures that would avoid the need for further provisional

relief in this case.” The Navy immediately appealed the TRO

to this court. 

The parties settled four days later, on July 7, one day after

the scheduled start of sonar training. As part of the settlement,

the Navy agreed to implement or modify several mitigation

measures it had previously rejected. The TRO appeal was voluntarily dismissed on motion by the parties prior to any ruling

on the merits. In this case, we consider the propriety of the

district court’s award of attorneys’ fees. 

B. Companion Case

At the time Plaintiffs brought this suit, a companion case

was concurrently being litigated in the same court, in front of

the same judge. NRDC v. Winter, No. CV 05-7513 FMC

(C.D. Cal. filed Oct. 19, 2005) (hereinafter NRDC I). At the

time the TRO was granted in NRDC II, the attorneys were still

NRDC v. WINTER 12951
litigating threshold issues such as jurisdiction and standing in

NRDC I. In fact, the Second Amended Complaint in NRDC

I was not filed until April 2008, and the case is still being litigated. 

NRDC I challenges the Navy’s use of mid-frequency active

sonar in all of its testing and training exercises, including the

biennial RIMPAC training exercise, alleging violations of

NEPA, APA, and the Endangered Species Act. The same

legal issues presented in this suit — whether the Navy complied with certain federal statutes — remain at issue in NRDC

I. The factual issues are also substantially the same, except

that NRDC I covers a wider range of Navy training exercises.

Finally, the NRDC I Plaintiffs are all involved in this suit

with the exception of the League for Coastal Protection.

Plaintiffs’ counsel for NRDC I included all of the Irell attorneys, the senior NRDC attorneys, and one of the junior

NRDC attorneys litigating this suit. At least two of the Navy’s

attorneys in NRDC I are also involved in this case. 

C. Background of Plaintiffs’ Attorneys

Plaintiffs’ attorneys consisted of two senior and two junior

in-house attorneys from NRDC, as well as one senior litigation partner and three junior associates from Irell. The Navy

does not contest the award of enhanced fees for the efforts of

the two senior NRDC attorneys, so we do not discuss their

qualifications. 

1. Junior NRDC attorneys 

During the prosecution of this suit, one junior NRDC attorney served as counsel in NRDC I and in NRDC v. Gutierrez,

457 F.3d 904 (9th Cir. 2006), the latter also being a challenge

to the Navy’s use of low-frequency sonar. At NRDC, she

worked primarily on marine mammal protection and developed expertise on the specific issue of high-intensity under12952 NRDC v. WINTER
water sound. She has co-authored a journal article and a

report on the topic of sonar and has spoken at the United

Nations and other environmental law fora on the issue. She

also served as part of a working group drafting guidelines for

the conduct of noise-producing activities in the Mediterranean

Sea. 

The second NRDC junior attorney had graduated from law

school and had worked as a full-time consultant-paralegal at

NRDC for over ten years, but was not a member of the bar

at the time this suit was settled. He also had developed expertise in the area of high-intensity underwater sound. He is the

author of two editions of a report and the co-author of a journal article on the topic of noise and its effect on mammals,

and the co-author for the entry for “sonar” in the Encyclopedia of Tourism in Marine Environments. He had been

appointed an Alternate Member and Subcommittee Member

to the Federal Advisory Committee on Acoustic Impacts on

Marine Mammals convened by the U.S. Marine Mammal

Commission, and served on the review panel for the Congressional Research Service’s 2005 report to Congress entitled

“Active Military Sonar and Marine Mammals.” Finally, he

had spoken at numerous events on the impact of sonar on

marine mammals. 

2. Irell attorneys 

The Irell senior litigation partner who served as co-lead

counsel in this case has a broad litigation practice. There is

evidence in the record that he has experience in alternate dispute resolution and arbitration, appellate litigation, entertainment transactions, intellectual property litigation, and general

litigation. His environmental law experience consisted of

serving as co-lead counsel in NRDC I and one other case,

NRDC v. U.S. Dep’t of the Navy, 857 F. Supp. 734 (C.D. Cal.

1994). In the 1994 case, NRDC challenged the Navy’s testing

of explosives near the Channel Islands National Marine Sanctuary on the basis of evidence of harm to marine life from

NRDC v. WINTER 12953
high-intensity sound as well as the Navy’s alleged failure to

comply with NEPA and MMPA. 

Three junior associates at Irell also served as counsel in

NRDC I. According to the record, however, none of these

three associates has any other prior experience in environmental litigation. Nor is there any indication that any has authored

any articles, done any research, participated in any fora, or

otherwise developed a specialty in environmental matters.

Nothing in the record suggests that environmental litigation

was a practice area for any of the three Irell associates. 

D. Motion for Attorneys’ Fees Under EAJA

After NRDC II was dismissed, NRDC filed a motion pursuant to the EAJA for fees and costs in the district court for the

work done by NRDC and Irell attorneys. The district court

granted the motion, awarding fees totaling $437,584.24 for

work in the district court and on the TRO appeal. In doing so,

the district court first found that Plaintiffs were eligible for

attorneys’ fees under the EAJA and that they were the prevailing parties. The court also found that the Navy’s position was

not substantially justified such that an award of fees would be

unmerited. The Navy does not contest these findings on

appeal. The district court also deducted hours that it found did

not directly and substantially contribute to meeting the Plaintiffs’ litigation goals. NRDC and Irell do not contest these

deductions. 

In determining the fee, the district court applied an

enhanced hourly rate above the statutory cap of $125 per

hour, finding that counsel brought distinctive skills unavailable at the statutory rate. The district court found distinctive

skills for two reasons. First, it found that environmental litigation is an identifiable practice specialty requiring distinctive

knowledge. Second, it found that all the attorneys involved in

NRDC II had highly specialized skills acquired from NRDC

I because the cases involved similar factual and legal issues

12954 NRDC v. WINTER
on behalf of nearly identical clients, against the same agency.

The Navy timely appeals the fee award. 

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review the amount of attorneys’ fees awarded by a district

court for abuse of discretion. Pierce v. Underwood, 487 U.S.

552, 571 (1988). However, “ ‘any elements of legal analysis

and statutory interpretation which figure in the district court’s

decision are reviewable de novo.’ ” Cabrales v. County of Los

Angeles, 935 F.2d 1050, 1052 (9th Cir. 1991) (quoting Hall

v. Bolger, 768 F.2d 1148, 1150 (9th Cir. 1985)). 

DISCUSSION

[1] The EAJA, 28 U.S.C. § 2412, allows prevailing parties

to recover attorneys’ fees in cases brought by or against the

United States unless the position of the United States in the

litigation was substantially justified, or special circumstances

make an award unjust. 28 U.S.C. § 2412(d)(1)(A).1 The Navy

does not contest the district court’s decision to award fees in

this case, but rather the amount of the fee award. Specifically,

the Navy challenges the district court’s decision to award

enhanced fees to several attorneys, its refusal to reduce fees

on account of limited success, and the court’s award of attorneys’ fees to Plaintiffs for hours spent preparing the appeal of

the TRO. 

1

28 U.S.C. § 2412(d)(1)(A) states: 

Except as otherwise specifically provided by statute, a court shall

award to a prevailing party other than the United States fees and

other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than

cases sounding in tort), including proceedings for judicial review

of agency action, brought by or against the United States in any

court having jurisdiction of that action, unless the court finds that

the position of the United States was substantially justified or that

special circumstances make an award unjust. 

NRDC v. WINTER 12955
A. Enhanced Fees

In Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991), we consolidated into a three-part test the relevant law governing what

must be proven in order to be awarded enhanced attorneys’

fees: (1) “the attorney must possess distinctive knowledge and

skills developed through a practice specialty;” (2) “those distinctive skills must be needed in the litigation;” and (3) “those

skills must not be available elsewhere at the statutory rate.”

Id. at 1496. 

In this case, the Navy concedes that the senior in-house

attorneys at NRDC were entitled to enhanced fees due to their

experience in environmental litigation. The Navy argues,

however, that the junior NRDC in-house attorneys and the

Irell attorneys were not entitled to an enhanced fee due to

their limited experience in environmental litigation. The Navy

further asserts that any distinctive skills these attorneys provided were not “needed” in the litigation. Finally, the Navy

claims that NRDC failed to show that the skills provided by

the Irell and junior NRDC in-house attorneys were available

elsewhere at the statutory rate. 

We first conclude that the Irell junior attorneys did not possess “distinctive knowledge and skills developed through a

practice specialty.” We thus hold that the district court should

not have awarded enhanced fees for their work on this case

and we therefore need not explore the Navy’s remaining

claims with respect to them. Because we conclude that both

the Irell senior partner and the NRDC junior attorneys did

possess distinctive knowledge and skills, we will examine the

Navy’s latter two claims with respect to them. 

1. Practice Specialty 

a. The Award of Enhanced Fees to Irell Junior Attorneys 

[2] The EAJA allows for the award of attorneys’ fees

“based upon the prevailing market rates for the kind and qual12956 NRDC v. WINTER
ity of the services furnished,” capped at $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)(1)(D)(2)(A) (emphasis added). 

[3] In Pierce, 487 U.S. at 571, the Supreme Court examined the phrase “limited availability of qualified attorneys for

the proceedings involved” in the EAJA. The Court explained

that the statute contemplated attorneys qualified “in some specialized sense, rather than just in their general legal competence,” such that “attorneys hav[e] some distinctive

knowledge or specialized skill needful for the litigation in

question.” Id. at 572. Distinctive knowledge, in turn, may be

“an identifiable practice specialty such as patent law, or

knowledge of foreign law or language.” Id. Although a court

may find that other “special factors” counsel in favor of an

enhanced fee award, these special factors may not be “of

broad and general application.” Id. at 573. For example, the

Pierce Court concluded that the district court in that case had

abused its discretion by relying on broad factors such as the

“ ‘novelty and difficulty of issues,’ ‘the undesirability of the

case,’ the ‘work and ability of counsel,’ and ‘the results

obtained.’ ” Id. The Court concluded that consideration of

these factors was inappropriate because, as opposed to factors

demonstrating specialized knowledge or skill, these factors

merely reflected an “extraordinary level of the general

lawyerly knowledge and ability useful in all litigation.” Id. at

572. 

Though the Pierce Court mentioned only patent law and

foreign law in its discussion of specialties, subsequent cases

in our circuit have recognized that other practice specialties

may qualify as “distinctive knowledge or skills” for which

enhanced fees are appropriate. See, e.g., Pirus v. Bowen, 869

F.2d 536, 541 (9th Cir. 1989). For example, in Pirus, we

affirmed an award of enhanced fees to attorneys who had

developed a social security practice specialty. Id. We reaNRDC v. WINTER 12957
soned that, like patent lawyers, they had “expertise with a

complex statutory scheme; familiarity and credibility with a

particular agency; and understanding of the needs of a particular class of clients — in this case, the elderly — and of how

those needs could best be met under the existing statute and

regulations.” Id. The attorneys had also litigated a similar case

“all the way to the Supreme Court.” Id. 

[4] With these principles in mind, we conclude that the district court abused its discretion in awarding enhanced fees to

the junior Irell attorneys. Contrary to the requirements set

forth in Reilly and Pirus, the Plaintiffs never established that

these attorneys had a practice specialty at all, much less distinctive skills that were “needed in the litigation.” 

Notwithstanding this deficiency, the district court analogized the junior Irell attorneys to counsel in Pirus, and found

that the junior Irell attorneys here acquired distinctive skills

litigating a concurrent companion case before the same court,

involving similar factual and legal issues, on behalf of nearly

identical clients, and against the same agency, including some

of the same opposing counsel. The district court further found

that this experience provided Plaintiffs with unique skills and

knowledge unavailable elsewhere at the statutory rate. 

[5] We do not agree with the district court’s reasoning.

Although the Supreme Court has not precisely enumerated

what may constitute a practice specialty or special factor, we

decline to expand these terms to encompass the degree of

expertise that the record indicates the junior attorneys may

have gained here from participating in the companion case.2

2

Indeed, some of our sister circuits read “special factor” more narrowly

than we do, allowing enhanced fees only where the specialities “requir[e]

technical or other education outside the field of American Law,” and not

on the basis of a practice specialty developed via litigation experience. In

re Sealed Case 00-5116, 254 F.3d 233, 235 (D.C. Cir. 2001) (quoting

Waterman S.S. Corp. v. Mar. Subsidy Bd., 901 F.2d 1119, 1124 (D.C. Cir.

12958 NRDC v. WINTER
We expect all attorneys to be experts of their own cases and

their clients’ litigation goals. 

Having held that the Irell junior attorneys did not acquire

sufficiently distinctive skills merely by participating in litigation surrounding the companion case, we see no other basis

for awarding them enhanced fees. Although environmental litigation may constitute an identifiable practice specialty, Plaintiffs must first establish that their counsel had such a

specialty. Animal Lovers Volunteer Ass’n, Inc. v. Carlucci,

867 F.2d 1224, 1226 (9th Cir. 1989), abrogated on other

grounds by Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir.

2001). Here, the record indicates that the junior Irell attorneys

had no experience in environmental law other than what they

gained in the concurrently litigated companion case. 

[6] Plaintiffs also point to a variety of exigent circumstances surrounding the litigation in NRDC II. Specifically,

they argue that the time-sensitive circumstances created by

the Fourth of July weekend, the successful resolution of the

case in ten short days, and the government’s use of seventeen

attorneys in the case justify enhanced fees for all counsel.

This court has not yet addressed whether mere exigency surrounding litigation is sufficient to warrant enhanced attorneys’ fees under the EAJA. The D.C. Circuit, however, has

concluded that even where the government creates an artificial emergency or where an appeal is expedited, this consider1990)); see also Former Employees of BMC Software, Inc. v. U.S. Sec’y

of Labor, 519 F. Supp. 2d 1291, 1346-53 (Ct. Int’l Trade 2007) (providing

an overview of the divergent interpretations of “special factor” across the

circuits). We do not believe it necessary to decide whether Pierce applies

only to purely technical areas outside of the law that require something

akin to separate credentials, but we do require that counsel demonstrate

some practice specialty needful to the litigation. Love, 924 F.2d at 1496;

Pirus, 869 F.2d at 541; accord Atl. Fish Spotters Ass’n v. Daley, 205 F.3d

488, 491 (1st Cir. 2000). Nevertheless, recognizing a single companion

case as a basis for distinctive knowledge would further widen this split.

NRDC v. WINTER 12959
ation is “insufficient” under the logic of Pierce to support a

statutory cap increase. Role Models Am., Inc. v. Brownlee,

353 F.3d 962, 969 (D.C. Cir. 2004). 

[7] We agree with the reasoning of Role Models America

and hold that the exigency reflected in the record of this case

is an insufficient basis to find a “special factor.” “Producing

high-quality work on a short deadline hardly satisfies th[e]

standard” in Pierce of “work requiring specialized skills or

knowledge beyond what lawyers use on a regular basis.” Role

Models Am., 353 F.3d at 969. We intend no denigration of the

performance of counsel under time-sensitive and stressful

conditions, including that of Irell’s junior attorneys in this

case, but the work that was done here is similar to the “work

and ability of counsel” and “results obtained” that were

rejected as insufficient in Pierce. 487 U.S. at 573. We also

note that the Irell junior attorneys were aided by NRDC cocounsel who specialize in public interest environmental litigation and who had one month of pre-filing preparation. That

junior counsel from Irell were able to work so quickly and

ably speaks to their general litigation skills and competence.

It is not, however, sufficient to qualify for an enhanced fee

award under the EAJA. 

[8] In rejecting the district court’s decision to award

enhanced fees to the junior Irell attorneys, we are mindful that

facing a team of seventeen government attorneys is a daunting

task. However, we have previously held that “oppos[ing] the

enormous resources of the federal government adds nothing”

to our analysis because this disincentive to file suit is the very

reason that the EAJA awards fees to a prevailing party. Animal Lovers, 867 F.2d at 1227 (internal quotation marks and

citation omitted). Plaintiffs are not entitled to convert the very

rationale for awarding fees in the first instance into a reason

for awarding enhanced fees in their particular case. We thus

agree with the Navy that the junior Irell attorneys were not

entitled to enhanced fees and we reverse the district court’s

decision to the contrary. 

12960 NRDC v. WINTER
b. Irell’s Senior Partner 

[9] We conclude that the district court did not abuse its discretion in finding that the senior Irell attorney had the requisite degree of specialized experience required under Pierce.

The district court noted that the senior partner had previous

experience in a 1994 case involving similar environmental

law issues and possible damage to marine mammals resulting

from loud noises. While a finding of specialized experience

cannot, as previously noted, be based merely on counsel’s

work on the virtually contemporaneous companion case, we

think the district court’s determination that this earlier, additional litigation constituted sufficient prior experience to justify an enhanced fee award was reasonable. 

c. The NRDC Junior Attorneys 

[10] We similarly decline to disturb the district court’s

finding that the NRDC attorneys had the requisite “practice

specialty” for an enhanced fee award. The declarations and

resumes submitted by NRDC adequately establish that all the

NRDC attorneys, including the two junior attorneys, had

developed extensive knowledge in environmental law, and

specifically in the effects of sonar on marine mammals. The

two junior NRDC attorneys have co-authored journal articles

and spoken at several national and international fora on the

impact of noise on marine mammals, as well as served on a

variety of committees addressing this distinct issue.3

3One NRDC junior attorney has graduated from law school, but has not

passed the bar. He currently serves as a full-time consultant for NRDC.

The Supreme Court has held that fees for paralegals are compensated as

a component of attorneys’ fees. Richlin Sec. Serv. Co. v. Chertoff, 128

S. Ct. 2007, 2013 (2008). By extension, this attorney may also recover

fees for his legal work, and he has reasonably requested lower rates than

an attorney of the same seniority who has passed the bar. 

NRDC v. WINTER 12961
2. Whether Distinctive Skills Were Needful to the

Litigation 

Under Love, Plaintiffs must also show that counsel’s distinctive knowledge and skills were “needful to the litigation”

in order to justify fees above the statutory cap. Love, 924 F.2d

at 1496. In considering whether Plaintiffs have met this standard, we note at the outset that this case involved more than

a straightforward application of the APA and the NEPA. Cf.

Thangaraja v. Gonzales, 428 F.3d 870, 876 (9th Cir. 2005)

(denying enhanced fees for an immigration attorney specializing in asylum law because the case at issue involved merely

a straightforward application of immigration law). To adequately craft the complaint and negotiate a settlement agreement under the circumstances of this case, counsel’s

knowledge of the Navy’s exercises in RIMPAC and the effect

of sonar on marine mammals was necessary. See Love, 924

F.2d at 1496 (attorney’s knowledge of the Federal Insecticide,

Fungicide and Rodenticide Act as well as familiarity with

areas of expert testimony necessary to obtain a preliminary

injunction on a short timeframe constituted distinctive knowledge needful for litigation). In addition, the billing records

indicate that the junior NRDC attorneys worked both on preparing the expert declarations and on possible mitigation measures. 

[11] On these facts, and in light of the district court’s intimate knowledge of the litigation and each attorney’s participation, we hold that the district court acted within its

discretion in finding that the distinctive skills of NRDC’s

attorneys and the Irell senior partner were needful to the litigation. 

3. Availability of Other Counsel 

[12] The Navy further argues that even if Plaintiffs’ counsel contributed distinctive skills needful to the litigation, they

have not met their burden of showing that no other suitable

12962 NRDC v. WINTER
counsel could be obtained at the statutory rate. The Navy correctly asserts that the burden rests on Plaintiffs to demonstrate

their entitlement to higher fees. Because the district court did

not place the burden on Plaintiffs, its decision must be

vacated and remanded for consideration consistent with this

opinion. 

The district court found that “there is no evidence that

[attorneys with the necessary skills and knowledge] were

available elsewhere at the statutory rate,” and on the basis of

this finding concluded that Plaintiffs were entitled to a fee

award at the enhanced rate. Such a finding represents an error

of law. The burden of providing evidence that appropriate

counsel cannot be found at the statutory rate rests on the

plaintiff. United States v. 22249 Dolorosa St., 190 F.3d 977,

985 (9th Cir. 1999). In other words, the plaintiff must show

that the skills required are not available elsewhere at the statutory rate; a mere absence of evidence to the contrary is insufficient. 

To summarize, we remand this case to the district court for

reconsideration consistent with this opinion to determine

whether the Plaintiffs have met their burden of proof under

the third prong of Love. If not, the district court should recalculate fees for the Plaintiffs as required. On remand, the district court should also recalculate fees for the junior Irell

attorneys at the statutory rate, plus a cost of living increase.

B. Limited Success

The Navy also argues that though Plaintiffs were the prevailing party, they achieved only limited success, which

required the district court to reduce the number of hours for

which fees were awarded. With regard to this issue, we find

that the district court did not abuse its discretion in finding for

the Plaintiffs. 

[13] In Hensley v. Eckerhart, 461 U.S. 424, 440 (1983), the

Court held that “the extent of a plaintiff’s success is a crucial

NRDC v. WINTER 12963
factor in determining the proper amount of an award of attorney’s fees under 42 U.S.C. § 1988.” Thus,

[w]here 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. But

where the plaintiff achieved only limited success, the

district court should award only that amount of fees

that is reasonable in relation to the results obtained.

Id. However, the fact that a settlement agreement does not

encompass all relief requested in the complaint does not preclude a finding that a plaintiff has nevertheless obtained an

“excellent result.” Sorenson, 239 F.3d at 1147. “ ‘Where a

plaintiff has obtained excellent results, his attorney should

recover a fully compensatory fee.’ ” Id. (quoting Hensley, 461

U.S. at 435). We apply the analysis from Hensley to EAJA fee

awards. Sorenson, 239 F.3d at 1145 n.2. 

In their complaint, Plaintiffs sought (1) a declaration that

the Navy was in violation of NEPA and MMPA; (2) vacatur

of NMFS’s Incidental Harassment Authorization and Finding

of No Significant Impact; (3) an injunction against the use of

mid-frequency active sonar during the RIMPAC exercises

unless the Navy complied with MMPA, NEPA, and APA; and

(4) an order directing the Navy to comply with NEPA and

MMPA in RIMPAC 2006 and future RIMPAC exercises.

According to the Navy, Plaintiffs obtained in a last-minute

settlement only a four-day TRO based on the NEPA claim

and a “modest settlement agreement that had little impact on

the Navy’s activities.” The Navy also argues that the district

court did not address the Navy’s argument regarding its claim

of limited success in its order awarding fees. 

We find these arguments unpersuasive. Though Plaintiffs

initially sought injunctive relief under both NEPA and

MMPA prior to the invocation of the MMPA exemption, the

12964 NRDC v. WINTER
goal of the litigation (as articulated by NRDC) was “to ensure

that RIMPAC 2006 would not be conducted absent the

Navy’s adoption of significant additional measures to protect

marine life from the harm caused by exposure to highintensity mid-frequency military sonar.” In other words,

Plaintiffs sought to compel the Navy to adopt mitigation measures beyond those in the Incidental Harassment Authorization. 

Although Plaintiffs’ complaint contained a number of

alleged causes of action, the two statutory claims “involve[d]

a common core of facts” and were “based on related legal theories,” Hensley, 461 U.S. at 435. Specifically, Plaintiffs’

entire litigation strategy was aimed at obtaining injunctive

relief to force a change in the Navy’s position. Thus, the district court properly “focus[ed] on the significance of the overall relief obtained by the plaintiff in relation to the hours

reasonably expended on the litigation.” Id. 

[14] Where the relief sought is not monetary but injunctive

relief pursued in the public interest resulting in a settlement,

the “extent of success” cannot easily be measured. We note

that Plaintiffs’ litigation goal was not to ground the Navy’s

training exercises nor to impose such extreme mitigation measures as to effectively do so. The “excellent result” here was

the attainment of the TRO, which forced the Navy to settle so

it could proceed with its scheduled exercises. As the district

court stated, the “settlement advanced Plaintiffs’ goals in

bringing the suit and was not a ‘gratuitous act’ on the part of

the Navy.” In adopting mitigation measures, the Navy substantially changed its position by agreeing to implement or

modify several mitigation measures it had previously rejected.

Moreover, this was the first time the Navy had agreed to additional mitigation measures for use during mid-frequency

sonar exercises, a major victory for Plaintiffs. 

The Navy further argues that the district court abused its

discretion by failing to address its argument that Plaintiffs

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enjoyed only limited success. It correctly argues that in determining the fee award, “when confronted with an objection on

the basis of the limited nature of relief obtained by the plaintiff, the district court should make clear that it has considered

the relationship between the amount of the fee awarded and

the results obtained.” Cummings v. Connell, 402 F.3d 936,

947 (9th Cir. 2005) (internal quotation marks and citations

omitted). 

However, our review of the district court’s order leads us

to conclude that the court adequately considered the relationship between the relief obtained and the fee award. The district court recognized that the successful TRO application was

a material factor in obtaining “a settlement that was agreeable

to all involved, allowing defendants to proceed with the naval

exercises so vital to our national security without causing

undue or unnecessary harm to marine life.” The court

declined to award fees for hours it found did not “ ‘directly

and substantially’ contribute[ ] to the attainment of their litigation goals.” Though it did not recite the magic words “excellent result” or “level of success,” the order made clear that

the district court viewed the successful TRO and resultant settlement as an “excellent result” for which fees were properly

awarded. 

[15] We therefore hold that the district court did not abuse

its discretion in declining to reduce the fee award on the basis

of purportedly limited success, and we also conclude that the

court explained its decision to an extent adequate for appellate

review. 

C. Fees on Appeal

Finally, relying on Ninth Circuit Rules 39-1.6(a) and 39-

1.8, and our decision in Cummings, 402 F.3d 936, the Navy

challenges the award of attorneys’ fees for work done on the

appeal of the TRO, arguing that Plaintiffs should have filed

for fees incurred on appeal in this court, not the district court.

12966 NRDC v. WINTER
Circuit Rule 39-1.6 stated in part, prior to a July 1, 2007

amendment: 

Absent a statutory provision to the contrary, a

request for attorneys fees, including a request for

attorneys fees and expenses in administrative agency

adjudications under 28 U.S.C. § 2412(d)(3), shall be

filed with the Clerk, with proof of service, within 14

days from the expiration of the period within which

a petition for rehearing or suggestion for rehearing

en banc may be filed. If a timely petition for rehearing or a suggestion for rehearing en banc is filed, a

request for attorneys fees shall be filed within 14

days after the court’s disposition of such petition or

suggestion. The request must be filed separately

from any cost bill. 

Circuit Rule 39-1.8 allows parties to move to transfer attorneys’ fee motions on appeal to the district court or pertinent

administrative agency. In Cummings, we held that appellate

fees requested pursuant to 42 U.S.C. § 1988 must be filed

with the Clerk of the Ninth Circuit in the first instance, not

with the district court. 402 F.3d at 947-48. But see Twentieth

Century Fox Film Corp. v. Entm’t Distrib., 429 F.3d 869, 883

(9th Cir. 2005) (affirming an award of attorney’s fees pursuant to 17 U.S.C. § 505 for work done on appeal).

[16] The EAJA, however, unlike the fee-shifting statutes —

42 U.S.C. § 1988 and 17 U.S.C. § 505 — states that “a court

shall award to a prevailing party other than the United States

fees and other expenses . . . incurred by that party in any civil

action . . . brought by or against the United States in any court

having jurisdiction of that action . . . .” 28 U.S.C.

§ 2412(d)(1)(A) (emphasis added). The plain language of the

statute indicates that the district court may properly award

fees for all levels of litigation. See also Jean, 496 U.S. at 159

(noting that “[s]ubsection (d)(1)(A) refers to an award of fees

‘in any civil action’ without reference to separate parts of the

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litigation such as discovery requests, fees, or appeals”). “[T]o

the extent that Ninth Circuit Rule 39-1.6 is inconsistent with

the EAJA, the Circuit Rule is inapplicable, and the EAJA controls.” Al-Harbi v. I.N.S, 284 F.3d 1080, 1082 (9th Cir. 2002);

accord Ninth Circuit Rule 39-1.6 (“Absent a statutory provision to the contrary [timing and filing provisions

apply]”(emphasis added)). 

[17] Similar to the appellate fees affirmed in Twentieth

Century Fox, these fees were “ ‘incurred for services that contribute[d] to the ultimate victory in the lawsuit’ ” as they were

incurred in defense of Plaintiffs’ TRO and the fees were thus

properly awarded. 429 F.3d at 884 (quoting Cabrales, 935

F.2d at 1052). We therefore hold that Plaintiffs’ application

for attorneys’ fees for the appeal of the TRO was properly

filed in the district court where final judgment was entered. 

CONCLUSION

For the foregoing reasons, we affirm the district court’s

findings with regard to the success of Plaintiffs and the right

of the district court to rule on the Plaintiffs’ application for

attorney fees on the appeal of the TRO. However, we

VACATE the district court’s order and REMAND for further

fact finding and fee determinations consistent with this opinion. 

AFFIRMED IN PART, and VACATED and REMANDED

IN PART. 

Each party shall bear its own costs. 

12968 NRDC v. WINTER