FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT NATIONAL FAMILY FARM No. 19-70115 COALITION; CENTER FOR FOOD SAFETY; CENTER FOR BIOLOGICAL DIVERSITY; PESTICIDE ACTION ORDER NETWORK NORTH AMERICA, Petitioners, v. U.S. ENVIRONMENTAL PROTECTION AGENCY; MICHAEL S. REGAN, in his official capacity as Administrator, Respondents, MONSANTO COMPANY; E. I. DU PONT DE NEMOURS AND COMPANY; BASF CORPORATION, Respondents-Intervenors. On Petition for Review of an Order of the Environmental Protection Agency Argued and Submitted December 1, 2021 San Francisco, California Filed March 17, 2022 2 NAT’L FAMILY FARM COALITION V. USEPA Before: Michael Daly Hawkins, M. Margaret McKeown, and William A. Fletcher, Circuit Judges. Order SUMMARY* 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 * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 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. COUNSEL George A. Kimbrell (argued), Sylvia Shih-Yau Wu, and Amy van Saun, Center for Food Safety, Portland, Oregon; Stephanie M. Parent, Center for Biological Diversity, Portland, Oregon; for Petitioners. Miranda M. Jensen (argued), Sarah A. Buckley, and J. Brett Grosko, Attorneys; Todd Kim, Assistant Attorney General; United States Department of Justice, Environment & Natural Resources Division, Washington, D.C.; Scott Garrison and Camille Heyboer, Attorneys; United States Environmental Protection Agency, Washington, D.C.; for Respondents. ORDER National Family Farm Coalition, Center for Food Safety, Center for Biological Diversity, and Pesticide Action Network North America (collectively, “Petitioners”) seek attorneys’ fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)(1)(A), for their work in connection with their successful petition for review in this 4 NAT’L FAMILY FARM COALITION V. USEPA court. Petitioners challenged the Environmental Protection Agency’s (“EPA”) grant of temporary registrations for new dicamba pesticides under the Federal …
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