IN THE UNITED STATES COURT OF APPEALS - Turtle Talk...IN THE UNITED STATES COURT OF APPEALS FOR THE...

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

_______________________

No. 10-12751-DD

_______________________

UNITED STATES OF AMERICA, UNITED STATES ENVIRONMENTAL

PROTECTION AGENCY,

LISA JACKSON, Administrator, in her official capacity,

and GWENDOLYN KEYES FLEMING, Regional Administrator,

Region IV, in her official capacity,

Defendants-Appellants,

v.

MICCOSUKEE TRIBE OF INDIANS OF FLORIDA

and

FRIENDS OF THE EVERGLADES, INC.,

Plaintiffs-Appellees.

_______________________

On Appeal from the

United States District Court for the Southern District of Florida

Case No. 04-21448-civ-Gold/McAliley

_______________________

FRIENDS OF THE EVERGLADES’

BRIEF IN RESPONSE TO US EPA

OPENING BRIEF

ON APPEAL OF ATTORNEY FEES

_______________________

JOHN E. CHILDE DAVID P. REINER, II

ATTORNEY FOR FRIENDS REINER & REINER PA

OF THE EVERGLADES 9100 So. Dadeland Boulevard

960 Linden Lane Suite 901

Dauphin, Pennsylvania 17018 Miami, Florida, 33156

Tel: 305-712-0172 Tel: 305-670-8282

[email protected] [email protected]

Case: 10-12751 Date Filed: 05/25/2011 Page: 1 of 43

mailto:[email protected]

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE STATEMENT

The following is a list of all judges, attorneys, persons, associations of

persons, firms, partnerships, corporations, and other legal entities that have an

interest in the outcome of this case, including subsidiaries, conglomerates,

affiliates and parent corporations, any publicly held company that owns 10 percent

or more of a party's stock, and other identifiable entities related to a party:

Antorcha, Juan Carlos

Blank, Robert H.

Borkowski, Winston K.

Childe, John E.

Crowley, David Alexander

De Monaco, Charles

Friends of the Everglades

Gold, Alan S., U.S. District Court Judge

Hayman, Kenneth

Jones-Foose, Lisa

Klock, Joseph P. JI.

Mancusi-Ungaro, Philip

C-l of l


McAliley, Chris M., U.S. District Magistrate Judge

Miccosukee Tribe of Indians of Florida

Moreno, Ignacia S., Assistant Attorney Gen, Env. & Natural Resources Div.

Munson, Gregory M.

Nieto, Gabriel E.

O'Donnell, Sonia Escobio

Rave, Norman L. Jr.

Reiner, David P.

Rountree, Tamara, N.

Sweeney, Stephen J.

Thomson, Parker, D.

United States of America

United States Environmental Protection Agency

United States Environmental Protection Agency, Administrator, Lisa

Jackson

United States Environmental Protection Agency, Regional Administrator,

Gwendolyn Keyes Fleming

Tamara N. Rountree

/S/DAVID P. REINER, II

___________________________

C-2 of 2


STATEMENT REGARDING ORAL ARGUMENT

The Friends of the Everglades believe oral argument will not benefit the

Court because there are no legal issues in this case concerning the Equal Access To

Justice Act (“EAJA”), 28 U.S.C. 2412, that this Court has not ruled on directly.

i


TABLE OF CONTENTS

PAGE

CERTIFICATE OF INTERESTED PERSONS

AND CORPORATE DISCLOSURE

STATEMENT………………………………………………………………… C-1

STATEMENT REGARDING ORAL ARGUMENT………………………… i

STATEMENT OF JURISDICTION………………………………………….. 1

COUNTER STATEMENT OF THE ISSUES……………….……………….. 1

COUNTER STATEMENT OF THE CASE…………………….………......... 2

Counter Statement of Facts Underlying Merits Litigation……........................ 2

Counter Statement of Attorney Fee Decisions Below……………..………….. 4

STANDARD OF REVIEW……………………………………...…………….. 9

RESPONSE TO SUMMARY OF THE ARGUMENT………………………... 10

RESPONSE TO EPA ARGUMENT…………………………………….......... 11

Tests To Determine Enhancement of Fees Under Pierce……………………… 11

EPA Attempts to Obfuscate The Issues…………………………………......... 13

EPA’s Argument Contrary to Eleventh Circuit Determination:

District Court is Proper Interpreter of Special Factors………………………... 14

Pierce and Jean Do Not Mandate Special Training…………………………... 16

Atlantic Fish Spotters and Chynoweth v. Sullivan Supportive………………... 18

ii


Duplication of Work………………………………………………………….. 19

Sufficiency of Knowledge For Special Factor;

Sufficiency of Record……………………………………………………….... 20

Distinctive Knowledge or Specialized Skill

Was “Needful”………………………………………………………………... 29

CONCLUSION…………………………………………………………….…. 32

CERTIFICATE OF COMPLIANCE WITH

FED.R.APP.P 32(a)(7)(C)………………………………………………….… 34

CERTIFICATE OF SERVICE…………………………………………….…. 35

iii


TABLE OF AUTHORITIES

CASES PAGE(S)

Pierce v. Underwood, 487 U.S. 552 (1988)……………1, 5, 6, 8-12, 14-18, 26, 31

Hensley v. Eckerhart, 461 U.S. 437 ……………………………..…..…..……9, 26

Pennsylvania v. Delaware Valley Citizens’

Council for Clean Air, 478 U.S. 546, 560-561 (1986)…………...........................9

Jean v. Nelson, 863 F. 2D 757 (11th Cir. 1988)…………..…..1, 6, 8, 10, 14-19, 31

Pollgreen v. Morris, 911 F. 2d 527 (11th Cir. 1990)……………................6, 10, 16

Meyer v. Sullivan, 958 F.2d 1029 (11th

Cir. 1992) ..…………………………… 10

Atlantic Fish Spotters v. Mayhew, (“Fish Spotters”), 205 F. 3d 488

(1st

Cir. 2000)……...……………………………………………………………..18

Chynoweth v. Sullivan,(“Chynoweth”), 920 F.2d 648, (10th

Cir. 1990)…….18, 19

Johnson v. University College, 707 F.2d 1205 ……………….…………...........19

Blasberg v. United States, Case No. 94-1844-CV,

1988 WL 774187, *6 June 3, 1998)…….…………………………………..........8

States v. Willens, 731 F. Supp 1579,1581 (S.D. Fla. 1990)……………………….6

Sierra Club v. Hankinson No. CIV A.1:94-CV2501MHS, 1997 WL 33303277,

*(ND Ga, April 18, 1997)…………………………………………………………7

iv


TABLE OF AUTHORITIES (cont.)

Headrick v. Georgia Dept of Revenue,

285 B.R. 540, 548-49 (S.D. Ga. 2001)…………………………………………..7

STATUTES, RULES AND REGULATIONS

28 U.S.C. 1291…………………………………………………………………... 1

Equal Access to Justice Act, 28 U.S.C. 2412…………………..……………….. 1

(“EAJA”), 28 U.S.C. 2412(d)(2)(A)(ii)…………………………………………. 1

Federal Clean Water Act (“CWA”), 33 U.S.C § 1251………………………….. 2

CWA, 33 U.S.C. §1313…………………………..……………………………… 3

Federal Administrative Procedures Act, 5 U.S.C. § 701……….. ………………. 3

Everglades Forever Act of 1994, § 373.4592,

Florida Statutes………………………………… 2, 3, 7, 13, 22, 23, 25, 27, 29, 30

Phosphorus Rule, §§ 62-302.530 and 62-302.540,

Florida Administrative Code……………………………………… 2, 3, 23-26, 30

v


1

STATEMENT OF JURISDICTION

This Court has jurisdiction under 28 U.S.C. 1291.

COUNTER STATEMENT OF THE ISSUES

The basis for EPA‟s appeal of the lower court‟s grant of attorneys‟ fees is

the award of enhanced fees to Attorney John E. Childe based on the “special

factor” provision of the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

2412(d)(2)(A)(ii), which states: “The amount of fees awarded under this

subsection shall be based on prevailing market rate for the kind and quality of the

services furnished, except 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.” (Emphasis added).

The issues raised by the EPA appeal are whether the court below abused its

discretion in applying the Supreme Court test in Pierce v. Underwood, 487 U.S.

552 (1988), and this Court in Jean v. Nelson, 863 F. 2D 757 (11th

Cir. 1988) for

determining the meaning of limited availability that will support an enhancement

of the EAJA statutory fee rate.


2

COUNTER STATEMENT OF THE CASE

1. Counter Statement of Factual and Procedural Background Underlying

Merits Litigation

The district court below properly summarized the historic factual and

procedural background of the case at the beginning of the Order Granting

Summary Judgment, July 29, 2008, stating:

This case, and its long history, is complex. It is a continuation of

litigation over the Everglades that started in 1988. Since that time, the

litigation has resulted in numerous court decisions, an overall

settlement agreement, and then litigation over it. To resolve the

litigation (as then pending), the Florida Legislature enacted the

Everglades Forever Act in 1994, § 373.4592, Florida Statutes. More

recently, the Florida Legislature enacted amendments to the

Everglades Forever Act in 2003, and the State of Florida adopted the

Phosphorus Rule, §§ 62-302.530 and 62-302.540, Florida

Administrative Code, applicable to the Everglades Protection Area.

Both the 2003 amendments to the Everglades Forever Act and the

Phosphorus Rule are the subject of this litigation.

Notwithstanding its complexity, the matters at issue may be reduced

to two essential questions. The first question is whether the

Environmental Protection Agency acted arbitrarily and capriciously

under the Federal Clean Water Act, 33, U.S.C §1251 et seq.


3

(“CWA”), and the Federal Administrative Procedures Act, 5 U.S.C.

§701, et. seq. (“APA”) by concluding that the 2003 amendments to

the Florida Everglades Forever Act did not change water quality

standards. The second question is whether the Environmental

Protection Agency further erred in its subsequent review of the State

of Florida‟s Rule by finding compliance with the Federal Clean Water

Act.

I conclude against the Environmental Protection Agency on both

questions (with some limited exceptions pertinent to the Phosphorus

Rule). Contrary to the Environmental Protection Agency‟s written

Determinations, it is my view that the Florida Legislature, in 2003, by

adopting the State‟s draft Long-Term Plan, as proposed by the South

Florida Water Management District‟s Governing Board, changed

water quality standards under the Federal Clean Water Act, and

violated its fundamental commitment and promise to protect the

Everglades, by extending the December 31, 2006 compliance deadline

for meeting the phosphorus criterion for at least ten more years.

Turning a “blind eye”, the United States Environmental Protection

Agency (“EPA”) concluded that there was no change in water quality

standards. The EPA is patently wrong and acted arbitrarily and

capriciously in reaching its conclusion.

The EPA further compounded its error in the subsequent review of the

State of Florida‟s Phosphorus Rule for compliance with Section 303

of the CWA, 33 U.S.C. §1313… It has failed to adhere to the

mandates of the CWA and analyze whether the Phosphorus Rule was

a “blanket change” to the previously approved December 31, 2006

compliance deadline for those who adopt the Long-Term Plan.


4

PP 1-3, Order Granting Summary Judgment, July 29, 2008. Excerpted Portions in

Friends‟ Tab 323, RE 75-77. 1

2. Counter Statement of Attorney Fee Decisions Below

EPA challenged Friends‟ request for fees in their entirety because of

alleged limited success. Magistrate Judge McAliley found that Friends

“indisputably is the prevailing party.” In reviewing the court‟s Order Granting

Summary Judgment to Plaintiffs the Magistrate Judge summarized the court‟s

multiple findings that EPA‟s Determinations and arguments that were the subject

of the Friends‟ Complaints were arbitrary and capricious, not supported by the

record, and contrary to law to determine that EPA‟s position was not substantially

justified. The Magistrate Judge also cited the Court‟s statement that “the EPA‟s

argument…fails the test of reason.” Friends‟ Tab 395, RE 272-274, 275-276).

The Magistrate Judge concluded: “Thus, viewing this litigation as an inclusive

whole, I find that EPA‟s position was not substantially justified and Friends is

entitled to recover its attorneys‟ fees and costs under the EAJA.” Friends‟ Tab

395, RE 276.

Friends, in its motion, sought $239,435.00 for lead counsel, John Childe,

based on 684.1 hours at a rate of $350.00 an hour and $23,175.00 for David

1 Friends of the Everglades is submitting its own reproduced record because the Federal

Defendants‟ Reproduced Record has omitted large portions of the lower Court‟s Summary

Judgment Order of July 29, 2008, pages 5 through 36 and pages 76 to 101. And the

Government‟s Record fails to include Friends of the Everglades Second Amended Complaint on

the 2003 Amendments to the 1994 Everglades Forever (Restoration) Act.


5

Reiner based on 92.7 hours at $250.00 an hour. In addition, Friends filed a motion

for $18,515.00 for Mr. Childe and $1,650.00 for Mr. Reiner for litigating the fees

issue, for a total award of $282,775.00. Friends‟ Tab 395, RE 276.

To determine the appropriate hourly fee amount the Magistrate Judge cited

the EAJA that “[t]he amount of fees awarded under this subsection shall be based

upon prevailing market rates for the kind and quality of the services furnished,

except that…(ii) attorneys shall not be awarded in excess of $125 unless the court

determines that an increase in the cost of living or a special factor, such as limited

availability of qualified attorneys for the proceeding involved, justifies a higher

fee.” (Emphasis added). Friends‟ Tab 395, RE 276-277. The Magistrate Judge

then conducted an independent review of the record, the qualifications of the

attorneys, the expert affidavits submitted, and other hourly rates recently awarded

in similar cases and concluded that $350.00 was within the range of market rates.

Id.

The Magistrate Judge then evaluated whether a “special factor” would

justify enhancing the hourly rate from the statutory $125.00 per hour to the

$350.00 market rate. To determine how to interpret the EAJA phrase “limited

availability” to grant enhanced fees, the Magistrate Judge relied on the Supreme

Court case of Pierce v. Underwood, 487 U.S. 552, 572 (1988), where the

Supreme Court determined that the exception for „limited availability of qualified


6

attorneys for the proceedings,‟ in some specialize sense rather than just in their

general legal competence, “ refers to attorneys having some distinctive

knowledge or specialized skill needful for the litigation in question-as opposed

to an extraordinary level of general lawyerly knowledge and ability useful in all

litigation.” (Magistrate Report, emphasis added). Friends‟ Tab 395, RE 280.

The Magistrate Judge then cited The Supreme Court listing in Pierce that

practice specialties such as patent law, or knowledge of foreign law or language

were examples of specialized skills and distinctive knowledge that would qualify

as examples of special factors, “Where such qualifications are necessary and can

be obtained only at rates in excess of the [statutory] cap, reimbursement above the

limit is allowed.” Id. Friends‟ Tab 395, RE 280.

The Magistrate Judge determined that Mr. Childe did possess distinctive

knowledge or specialized skill needful for the litigation. The Magistrate Judge

cited numerous cases that have held that special expertise in a narrow legal

specialty may entitle counsel to an upward adjustment under EAJA, including the

this Court‟s decision in Pollgreen v. Morris, 911 F. 2d 527, 538 (11th

Cir. 1998),

which relied on Jean v. Nelson, 863 F. 2D 757 (11th Cir. 1988), where this Court

noted that on remand the district court was free to consider the potential expertise

of counsel in immigration matters in reevaluating the appropriate hourly rate

under the EAJA. 201United States v. Willens, 731 F. Supp 1579,1581 (S.D. Fla.


7

1990) (Counsel‟s knowledge of Federal Aviation Administration regulations was

“specialized skill”), Sierra Club v. Hankinson No. CIV A.1:94-CV2501MHS,

1997 WL 33303277, *(ND Ga, April 18, 1997) (environmental expertise is a

special factor supporting enhancement), Headrick v. Georgia Dept of Revenue,

285 B.R. 540,548-49 (S.D. Ga. 2001) (expertise in Eleventh Amendment

sovereign immunity.) Friends‟ Tab 395, RE 281.

The Magistrate Judge then found that the Record of the case established

that “Mr. Childe has a special expertise in the in the narrow area of the CWA,

with particular knowledge of its interrelationship with the Everglades Restoration

Act (Everglades Forever Act); he also has a strong understanding of the

underlying environmental science. Mr. Childe has developed that specialized

expertise over years of practice: for twenty-eight years he has specialized in

public interest environmental litigation, participating in more than 150 federal

environmental cases. (DE 335-3, PP3,6; 350, p. 86, PP5-7).” The court then went

on to state: “Importantly, Mr. Childe has extensive knowledge of the issues

surrounding the Everglades Restoration (Forever) Act. (DE 350, p.10)”. The

Magistrate Judge found that “[t]he regulatory and scientific issues raised in this

action were extraordinarily complex, as evidenced by the Court‟s lengthy order

on the motions for summary judgment, and required counsel with Mr. Childe‟s

developed specialization.” Friends‟ Tab 395, RE 280. The Magistrate Judge then


8

stated: “I thus conclude that Mr. Childe has established a special factor that

entitles him to an enhancement of his hourly rate under the EAJA.” Id.

In the final calculation of fees, the Magistrate Judge imposed reductions,

including a ten percent reduction across the board to reflect Friends partial

success, and limited the hourly rate for pursuit of fees to the statutory amount.

Mr. Childe was awarded $212,407.69 in fees; David P. Reiner was awarded

$12,337.26; And Friends of the Everglades was awarded $10,742.41 in costs.

Friends‟ Tab 395, RE 289-290.

Judge Gold subsequently issued an order adopting the Magistrate‟s Report

in full, Friends‟ Tab 405, RE 292, and overruled EPA‟s objections thereto. EPA

first argued that a practice specialty is not sufficient for an upward adjustment

pursuant to the EAJA. Judge Gold disagreed, based on the opinion of the United

States Supreme Court in Pierce v. Underwood, supra, and this Court‟s opinions in

Jean v. Nelson, 863F. 2d 759, 781 (11th

Cir. 1988) (noting that the fact that “some

of the participating attorneys have a special expertise in immigration law” could

be a “ground for which a rate adjustment (under the EAJA) might be proper on

the basis of “special factor”); and Blasberg v. United States, case no. 94-1844-

CV, 1988, WL 774187, *6 June 3, 1998 (noting that specialization in bankruptcy

law can constitute a “special factor” under the EAJA and allowing upward


9

adjustment based on fact that “tax law is every bit as much a specialty as

immigration or patent law”).

EPA then argued that the Magistrate Judge erred by declining to

recommend more than a ten percent reduction, because it does not adequately

reflect the lack of success…under the ESA [DE 397]. The court determined,

“While I agree that Friends should not be permitted to recover fees pursuant to

the EAJA for its ESA claim, Friends fees submission eliminated all billing related

to the ESA claim. [DE 353, p.2].

Judge Gold then concluded stating: “Because Mr. Childe has unequivocally

demonstrated that he possessed a distinctive knowledge or specialized skill

needful for this litigation, I agree with Magistrate Judge McAliley that an upward

departure from the statutory rate is warranted for the highly specialized legal

services rendered by Mr. Childe.” Friends‟ Tab 405, RE 294-295.

STANDARD OF REVIEW

This Court reviews a district court‟s decision to award fees, and the amount

of such fees, for an abuse of discretion. Pierce v. Underwood, 487 U.S. 552, 571,

108 S.Ct. at 255 (“we are satisfied that the text of the statute permits, and sound

judicial administration counsels, deferential review of a district court‟s decision

regarding attorney‟s fees under the EAJA.”); Hensley v. Eckerhart, 461 U.S. 424,

437 (1983); Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air,


10

478 U.S. 546, 560-561 (1986); Jean v. Nelson, 863 F.2d 759, 769; Meyer v.

Sullivan, 958 F.2d 1029, 1033 (11th Cir. 1992).

RESPONSE TO EPA SUMMARY OF ARGUMENT

It is patently untrue, as EPA argues (Opening Brief, P. 8-9), that the lower

court disregarded relevant Supreme Court and Court of Appeals authority

demonstrating the type of special factors that justify or support a special

enhancement of fees under the EAJA. See Magistrate McAliley Report, RE 199,

Judge Gold Order, RE 213, citing the Supreme Court decision in Pierce v.

Underwood, supra, and this Court‟s decisions in Jean v. Nelson, 863F. 2d 759, 781

(11th

Cir. 1988), and Pollgreen v. Morris, 911 F. 2d 527, 538 (11th Cir. 1990), for

that very proposition.

It is also patently untrue that the EAJA allows “special factors” only where

counsel has “distinct knowledge.” (EPA Opening Brief, P. 9.) The Supreme Court

in Pierce determined two separate and distinct types of special factors: “some

distinctive knowledge” or “some…specialized skills.”

EPA is also wrong in stating that the district court authorized fee

enhancement based solely on “practicing in a particularized area of law.”

(Opening Brief, P. 9.) The Magistrate Judge looked to the Record of the case and

found that it “shows that Mr. Childe has a special expertise in the narrow area of

the CWA, (Clean Water Act), with particular knowledge of the interrelationship


11

with the Everglades Restoration; he also has a strong understanding of the

underlying environmental science…The regulatory and scientific issues raised in

this action were extraordinarily complex, as evidenced by the Court‟s lengthy

order on the motions for summary judgment, and required counsel with Mr.

Childe‟s highly developed specialization.” Friends‟ Tab 395, RE 282.

The EPA is wrong in asserting that the District Court‟s determination that

Mr. Childe had distinct knowledge of Everglades Restoration and the CWA is not

supported by the Record. The Magistrate Judge reviewed the record, including the

Plaintiff‟s multiple Complaints, and the Court‟s Order granting summary

judgment, Friends Tab 395, RE 271-273, 282.

Lastly, EPA is wrong in asserting that Mr. Childe‟s distinctive knowledge

and specialized expertise was not necessary to the litigation of the merits of the

case. (Opening Brief, P. 10.) See response to EPA argument below.

RESPONSE TO EPA ARGUMENT

Tests To Determine Enhancement of Fees Under Pierce

EPA‟s appeal is based on challenging the district court‟s application of a

special factor to grant the determined market rate of $350.00 per hour to the

Plaintiff‟s attorney, John Childe, rather than the EAJA statutory amount of

$125.00. The relevant section of the EAJA regarding fee enhancement states:


12

The amount of fees awarded under this section shall be based upon the

prevailing market rates for the kind and quality of the services

furnished, except that…(ii) 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 limited availability of

qualified attorneys for the proceedings involved justifies a higher fee.

28 U.S.C. § 2412(d)(2)(A)(ii). (Emphasis added.)

The Supreme Court in Pierce has interpreted the statutory exception for

“limited availability” to mean “„qualified for the proceedings‟ in some specialized

sense, rather than just in their general legal competence.” 487 U.S. at 572. More

specifically, the Supreme Court states:

“Limited availability of qualified attorneys for the proceedings

involved” must refer to attorneys “qualified for the proceedings” in

some specialized sense, rather than just in their general legal

competence. We think it refers to attorneys having some distinctive

knowledge or specialized skill needful for the litigation in

question—as opposed to an extraordinary level of the general

lawyerly knowledge and ability useful in all litigation. Examples of

the former would be an identifiable practice specialty such as patent

law, or knowledge of foreign law or language.

Id. (emphasis added). Thus, in Pierce the Supreme Court interpreted the EAJA

“special factor” test to grant a fee enhancement for either having “some

distinctive knowledge,” such as a language skill or knowledge of foreign law or

some “specialized skill,” such as patent law.


13

EPA Attempts to Obfuscate the Issues

EPA attempts to obfuscate the findings of the district court by first

implying that the court relied solely on the “specialized skills” test. (EPA Brief,

FN 1, P. 12-13.) Then, EPA asserts that the district court erred by enhancing the

fee award “solely on the knowledge he [Attorney Childe] gained from practicing

public interest environmental law.” (EPA Opening Brief, P. 21.) Neither

statement is what the district court held.

The Magistrate Judge below found that the Record of the case established

that “Mr. Childe has a special expertise in the narrow area of the CWA, with

particular knowledge of its interrelationship with the Everglades Restoration Act

(Everglades Forever Act); he also has a strong understanding of the underlying

environmental science. Mr. Childe has developed that specialized expertise over

years of practice: for twenty-eight years he has specialized in public interest

environmental litigation, participating in more than 150 federal environmental

cases. (DE 335-3, PP3,6; 350, p. 86,PP5-7).” Friends‟ Tab 395, RE 282. The

district court then stated: “Importantly, Mr. Childe has extensive knowledge of the

issues surrounding the Everglades Restoration (Forever) Act. (DE 350, p.10)…The

regulatory and scientific issues raised in this action were extraordinarily complex,

as evidenced by the court‟s lengthy order on the motions for summary judgment,

and required counsel with Mr. Childe‟s developed specialization.” RE 282. The


14

Magistrate Judge then stated: “I thus conclude that Mr. Childe has established a

special factor that entitles him to an enhancement of his hourly rate under the

EAJA.” Id.

Judge Gold, in adopting the full Magistrate Judge Report and

Recommendation, concluded that “[b]ecause Mr. Childe has unequivocally

demonstrated that he possessed a distinctive knowledge or specialized skills for

this litigation, I agree with Magistrate Judge McAliley that an upward departure

from the statutory rate is warranted for the highly-specialized legal services

rendered by Mr. Childe.” Gold Opinion, Friends‟ Tab 405, RE 294-295.

Thus, the court below tied together the specialized skills obtained by Mr.

Childe through the twenty-eight years of specialized practice in the CWA with the

distinctive knowledge of the regulatory and scientific issues surrounding

Everglades Restoration, which the Court found to be „extraordinarily complex,‟

within the purview of Pierce and Jean.

EPA’s Argument Contrary to Eleventh Circuit Determination:

District Court is Proper Interpreter of Applying Special Factors

EPA contends that in Jean v. Nelson, 863 F. 2d. 757 (11th

Cir. 1988), this

Court did not directly address how to establish whether an attorney has distinct

knowledge or specialized skill to determine whether a special factor enhancement

should be applied. (Opening Brief, P. 18.) That is an obvious misreading of the

case. This Court in Jean specifically determined that it is within the discretion of


15

the district court to make that interpretation. This Court addressed the question

with the following statement:

The dissent contents that attorneys practicing immigration law

do not have any “distinctive knowledge or specialized skill

needful for the litigation in question” within the meaning of that

phrase as it is used in Pierce, 108 S. Ct. at 255. [Emphasis

added by the court.] The majority agrees that not every

immigration attorney or every immigration lawsuit warrants an

upward adjustment of hourly rates and we would suggest that

such is also the case in some patent or foreign law cases.

Lawyers and judges could spend the balance of time arguing

about the meaning of the phrase from Peirce. Interpretation of

this phrase is better left to the discretion of the district court

as application of the phrase will depend on the complexity

of the case (“the litigation in question”) and on the

experience (“distinctive knowledge”) and acquired expertise

(“specialized skill”) of the particular billing attorney. We

are confident that the district court can properly interpret

and apply the above quoted phrase to the facts of the case.

Id. at 774 (emphasis (bold) added).

The holding of this Court in Jean is in line with Pierce, in which the

Supreme Court states that “we are satisfied that the text of the statute permits, and

sound judicial administration counsels, deferential review of a district court‟s

decision regarding attorney‟s fees under the EAJA.” 487 U.S. at 571, 108 S.Ct. at

255.

In Jean, this Court has provided some guidance to the district courts on how

to construe the Pierce special factor language of “some distinctive knowledge or


16

specialized skill needful for the litigation in question.” (emphasis added). In

Jean, the complexity of the case is a relevant consideration of “the litigation in

question.” 863 F.2d. at 774. The experience of the attorney is relevant in

considering whether the attorney has “distinct knowledge,” and whether the

attorney has acquired expertise is relevant to determine if the attorney has a

“specialized skill.” Id. The court specifically suggested that a special factor rate

might be appropriate for attorneys who have a special expertise in immigration law

or are fluent in foreign languages relevant to the litigation, id. at 774; citing Pierce

487 U.S. at 572-73, noting that “practice specialty such as patent law, or

knowledge of foreign language” could constitute a special factor.

The decision in Jean has subsequently been consistently applied in the

Eleventh Circuit. In Pollgreen v. Morris, 911 F. 2d 527, 538 (11th Cir. 1990),

this Court remanded to the district court, indicating that the lower court was free

to consider the potential expertise of counsel in immigration matters in

reevaluating the appropriate hourly rate under the EAJA. RE 200.

No Special Education or Training

EPA argues that since the Supreme Court used the example of patent law to

illustrate an identifiable practice specialty, and that the practice of patent law

requires some “scientific and technical training,” then the Supreme Court impliedly

requires all identifiable practice specialties to require some additional scientific


17

and technical training before it can be recognized as a special skill for

enhancement fee purposes. (EPA Opening Brief, 13-18.)

There is no justification for this conclusion. The Supreme Court in Pierce as

well as this Court in Jean, require that the attorney have either some distinctive

knowledge or specialized skill that is relevant (“needful”) to the case. In each case

the Courts separated “distinctive knowledge”, with examples such as a language

skill, from “specialized skill” with an identified practice specialty. Either or both

of these must then be applied to the case before the district court, and, as this Court

suggests, if the complexity of the case is such that the knowledge or practice

specialty is needed, then the special factor under the EAJA can be applied. But it is

up the district court to make that determination. Jean, 863 F.2d at 774.

The district court applied these tests as directed by the Supreme Court in

Pierce and this Court in Jean. The district court found that Mr. Childe had both the

distinctive knowledge of the Everglades Restoration issues and the identified

practice specialty, with twenty-eight years of litigation experience under the CWA,

and, in relation to his knowledge of Everglades Restoration issues mandated under

the CWA, that Mr. Childe possessed a “strong understanding of the underlying

environmental science”, Tab 395, RE 292 - all of which, when applied to the

complexity of the case, justified the granting of a special factor enhancement.

Friends‟ Tab 395, RE 290-292, Friends‟ Tab 405, RE 294-295.


18

Atlantic Fish Spotters and Chynoweth v. Sullivan Supportive

EPA repeatedly cites Atlantic Fish Spotters v. Mayhew, (“Fish Spotters”)

205 F. 3d 488, (1st Cir. 2000), and Chynoweth v. Sullivan,(“Chynoweth”) 920 F.2d

648, (10th Cir. 1990), to support its argument. However, these cases are in line with

this Court‟s Opinion in Jean, and the district court below.

In Fish Spotters the government appealed the award of special factor

enhancement for one of three attorneys in the case because of his specialty in

fisheries law. In addressing the government‟s arguments that the limited

availability test require some special discipline over and above the expertise that

any experienced counsel might develop in his own specialty, the First Circuit panel

made the following determination:

The government cites some circuit authority that could be read

in its favor, while readily conceding that the Ninth Circuit has

taken a more liberal view of the statute. However, we do not

read the Supreme Court or most of the circuit cases as adopting

a mechanical rule that automatically excludes a specialist from

extra compensation merely because no separate credential

exists for his field and because no foreign law or language is

required. Such a reading is neither compelled by the statutory

language or the examples in Pierce nor consistent with what

appears to be the underlying purpose of the exception.

Atlantic Fish Spotters v. Mayhew, (“Fish Spotters”) 205 F. 3d

488, 491, (1st Cir. 2000).


19

In Chynoweth the tenth circuit simply found that social security law “is not

beyond the grasp of a competent attorney with access to a law library and the other

accoutrements of modern legal practice.” Chynoweth v. Sullivan (“Chynoweth”),

920 F.2d 648, 649, (10th

Cir. 1990).

Duplication of Effort

EPA argues that the district court erred by failing to establish that Mr.

Childe provided distinctive knowledge or a specialized skill that were not already

provided by attorneys for the Miccosukee Tribe (the “Tribe”). (EPA Opening

Brief, P. 35-36.)

In Jean, 863 F.2d at 773, this Court recognized that in complex cases

multiple counsel is “understandable.” In the cases before the district court, the

Tribe was represented by a competent law firm. However, Friends was

represented by only one attorney on the merits, Mr. Childe. In Jean, this Court

went on to find that “[w]hile duplication of effort is a proper ground for reducing a

fee award, a reduction is warranted only if the attorneys are unreasonably doing the

same work,” citing Johnson v. University College, 707 F.2d 1205, 1208 (11th

Cir.).” But it is the government‟s obligation to specify any such incidences. Id.

EPA argues that since the oral arguments were made primarily by the

attorney for the Tribe, and several briefs were filed by the Plaintiffs jointly, that the

district court was without sufficient evidence that Mr. Childe‟s distinctive


20

knowledge and special skills were needed for the case. But what EPA fails to

concede to this Court is that the Plaintiffs frequently coordinated their efforts to

purposefully avoid duplication. In addition, as discussed previously in this

Response, the district court made sufficient findings, supported by the record (see

further discussion below), to demonstrate that Mr. Childe has both the distinctive

knowledge and special skills needed for the case.

Sufficiency of Knowledge For Special Factor; Sufficiency of the Record

EPA argues that the district court below awarded a special factor rate

enhancement on grounds that “are so inclusive that they emasculate EAJA‟s rate

cap,” (EPA Opening Brief, p. 21); that the district court‟s decision was based

solely on the knowledge he (Mr. Childe) allegedly acquired from practicing public

interest environmental law, (EPA Opening Brief, p. 21); that the district court‟s

interpretation of the EAJA stands for the proposition that “an enhanced fee award

would be warranted for all attorneys who have a particular knowledge of, or

expertise in, statutory schemes that form the basis of their practice.” (EPA Opening

Brief, p. 22); “and the fact that the source of Mr. Childe‟s knowledge is practicing

law, and this generally applicable knowledge cannot constitute a ground for fee

enhancement.” (EPA Opening Brief, p. 23); that, in response to the court‟s finding

that Attorney Childe had a strong understanding of the environmental science

underlying the case, “it was an abuse of discretion for the district court to enhance


21

Mr. Childe‟s award simply because he supposedly possessed an understanding of

the terms and subject matter that underlie his practice.”(EPA Opening Brief, p. 26);

and finally EPA argues that Mr. Childe‟s purported knowledge of terms and

principles underlying his area of practice is a category of knowledge that can apply

to all attorneys practicing in technical area of administrative law.” EPA Opening

Brief, p. 30.); and that, even assuming that the knowledge the court relies on

constitutes the type knowledge that merits a special enhancement factor, the

District Court did not identify anything in the record that demonstrates that Mr.

Childe possessed distinctive knowledge that would merit a special factor

enhancement. EPA Opening Brief, PP. 30-31.

The Magistrate Judge‟s specific findings supporting a determination of

special factor were as follows:

(1) “The record shows that Mr. Childe has a special

expertise in the narrow area of the CWA [Clean

Water Act]”;

(2) Mr. Childe has “particular knowledge of [the

CWA‟s] interrelationship with the Everglades

Restoration Act”;

(3) Mr. Childe “also has a strong understanding of the

underlying environmental science”;

(4) “Mr. Childe has developed that specialized

expertise over years of practice: for 28 years he

has specialized in public interest environmental

litigation, participating in more than 150

environmental cases. [DE 335-3, pp3, 6; 350, p.

86, pp5-7].”


22

(5) “Importantly, Mr. Childe has extensive knowledge

of the issues surrounding the Everglades

Restoration Act. [DE 350,p. 10].”

(6) “Plaintiffs could not have successfully brought this

litigation without counsel who had mastery of this

complex intersection of science and environmental

law.”;

(7) “The regulatory and scientific issues raised in this

action were extraordinarily complex, as evidenced

by the Court‟s lengthy order on the motions for

summary judgment, and required counsel with

Childe‟s highly developed specialization.”

Magistrate‟s Report and Recommendation, March

15, 2010; (Numeric seriations added) (Friends‟

Tab 395, RE 282).

The factors the Magistrate Judge relied on go far beyond broad generalized

knowledge of public interest law. They are not statutory schemes that form the

basis of a public interest practice. They are not “categories of knowledge” that

can apply to all attorneys. They relate specifically to the facts and circumstances

of this case, the Everglades Forever (Restoration) Act and the complex science

and litigation that make up an extended, complicated history of the case. The

Magistrate Judge emphasized, “Mr. Childe has particularized knowledge of the

CWA‟s (Federal Clean Water Act) interrelationship with the Everglades

Restoration Act.” And, “Importantly, Mr. Childe has extensive knowledge of the

issues surrounding the Everglades Restoration (Forever) Act.” RE 282.


23

The Magistrate Judge specifically cited the district court order granting

Summary Judgment dated July 29, 2008, in concluding that, “The regulatory and

scientific issues raised in this action were extraordinarily complex, as evidenced

by the Court‟s lengthy Order on Motions for Summary Judgment, and required

counsel with Childe‟s highly developed specialization.” Friends‟ Tab. 395, RE

282, 292. There is certainly sufficient evidence in the Court Order to support the

Magistrate Judge‟s findings.

The district court Order began by conceding that these cases and their long

history, is complex. The court noted that these cases are a continuation of

litigation over Everglades protection that started in 1988. The court also noted

that, since 1988, Everglades litigation has resulted in numerous lawsuits and court

decisions, a settlement agreement, and then litigation over the scope of the

settlement. The Order discusses how, in an effort to resolve that litigation, the

Florida Legislature passed the Everglades Forever Act, and thereafter passed the

2003 Amendments to the Everglades Forever Act. (EPA Tab 323, p. 75) and the

State of Florida adopted the Phosphorus Rule (Water Quality Standard).

Subsequently, in twenty pages of the opinion, the district court‟s Order

details the complex factual and procedural history of the Everglades Forever Act

up to the 2003 Amendments, and the need for water quality standards that lead to


24

the Phosphorus Rule pages 16 through 35 of the Order Granting Summary

Judgment, (Friends Tab 323, RE 91-110).

The history began with the uniqueness of the Everglades system. It is

unlike any other ecosystem on earth. It is a National resource of exceptional

recreational and ecological significance. Tab 323, RE 91. It describes the

Everglades as an oligotrophic system, naturally low in nutrients, and a

disproportionately low level of phosphorus. Tab 323, RE 92. It includes not only

Everglades National Park but also the Loxahatchee Wildlife Refuge as well as

two large areas north of the Park known as Water Conservation Areas II and III,

where the Miccosukee Indians live. Id. At 91. That violations of Florida‟s water

quality standards were so severe that they threatened the ecological integrity and

ultimately the survival of the Park and the Refuge. Id. At 94. And that entire

system is endangered by adverse changes in water quality, and in the quantity,

distribution and timing of flows, and therefore must be restored and protected. Id.

at 95. The district court‟s Order deals with the changing compliance deadline for

developing and enforcing water quality standards for discharges into the

Everglades to be met in order to prevent further harm from occurring (Id, at 96)

as well as the need for a numeric (water quality) standard of 10 parts per billion

of phosphorus to be met in order to reduce the nutrient loads to the point where

they no longer cause an imbalance in the natural flora and fauna. Id. At 97. The


25

Order deals with the complexity of the 1994 Everglades Act and how it

established a long-term period of study and evaluation leading up to the adoption

and completion of the numeric standard and how the existing narrative standard

for nutrients remained in effect as the applicable water quality standard. Id, 96-99.

The Order reviewed the litigation history of the 1994 Everglades Forever Act,

including Chief Judge Davis‟ opinion (Id. At 99), EPA‟s 1999 Determination,

Judge Seitz‟ opinion, affirmed by this Court, Friends of the Everglades v. EPA,

Case No. 01-16482, at 3 (11th

Cir. July 19, 2002)[Case No. 00-935, DE 83].

Friends Tab 323, pp 106.

Mr. Childe wrote and filed the two Complaints on behalf of the Friends of

the Everglades that were the subject of the district court‟s Summary Judgment

Order of July 29, 2008, Friends‟ Second Amended Complaint on the EPA

Determination approving the 2003 Amendments to the 1994 Everglades Forever

Act, [DE 113], and Friends‟ Second Amended Complaint dealing with the

Phosphorus Rule [DE 150] ( Order of July 29, 2008, Page 5, Friends Tab.323, RE

80). The district court‟s Summary Judgment Order addressed numerous Motions,

including Friends of the Everglades‟ Motion for Partial Summary Judgment on its

Second Amended Complaint regarding the 2003 Amendments to the Everglades

Forever Act, [DE 226], and the Friends of the Everglades Motion For Summary


26

Judgment with respect to the Phosphorus Rule, [DE 255] ( Summary Judgment

Order, p. 6, Friends Tab 323, RE 81).

A detailed analysis of the two Complaints and the district court‟s Order,

and how they substantiate Mr. Childe‟s knowledge of the complex

interrelationship between esoteric CWA water quality standards requirements in

relation to the complex factual and legal requirements of the Everglades

Restoration process would essentially require this Court to rehear the entire

summary judgment proceeding which the district court held and ruled on (and

which was not appealed). That is not the purpose of attorney fee process under the

EAJA. As the Supreme Court repeatedly stated, “A request for attorney‟s fees

should not result in a second major litigation.” Pierce, at 563, citing Hensley v.

Eckerhart, 461 U.S. 424,437.

Under the abuse of discretion standard there just needs to be some evidence

in the record to support the findings of the Court below. The abuse of discretion

standard allows “a range of choice for the district court, so long as that choice

does not constitute a clear error of judgment.” See, United States v. Kelly, 888

F.2d 732, 745 (11th Cir.1989)(citing Kern v. TXO Prod. Corp., 738 F.2d 968,

970-71 (8th Cir.1984) (The very concept of discretion presupposes a zone of

choice within which the trial courts may go either way).


27

The interlocking, complex history of the Everglades Restoration (Forever)

Act that the district court‟s Summary Judgment Order spelled out was an

important element in Friends of the Everglades Second Amended Complaint

dealing with the 2003 Amendments to the Everglades Forever Act (Friends‟ Tab

113, RE 6-8) and which the Court below adopted. That included citing to and

attaching the full opinion of Judge Davis to Plaintiff‟s Complaint (Tab 113, RE 7)

which the Summary Judgment Order relied on, devoting four pages of the Order

to Judge Davis, Friends Tab 323, RE 99-103. In Friends Second Amended

Complaint dealing with the 2003 Amendments to the Everglades Forever Act

there is further evidence of the knowledge of the interrelationship between the

CWA and the scientific issues of the Everglades Restoration in the section

entitled “Violation of Section 303”, Friends‟ Tab 113, Re 9-12. Additionally, the

Friends complaint specifically linked the issues of the 2003 Amendments to

Everglades Forever Act and the NPDES permits being issued by the State to the

primary dischargers into the Everglades. Friends‟ Tab 113, RE 13-15.

The Magistrate Judge also based her findings on the Verified Motion For

Fees and affidavits in support submitted by Plaintiff - including the affidavit John

Childe and the Affidavit of Juanita Greene, Conservation Chair of Friends of the

Everglades, which were not challenged by the Defendants below.


28

The affidavit of Juanita Greene established that Attorney Childe has

represented Friends in Everglades matters since 1993. He was asked to represent

Friends because there were no attorneys that Friends knew in the State of Florida

with Mr. Childe‟s experience representing Environmental groups in Federal Court

on CWA issues; and that,

The litigation challenging the EPA for approving the

2003 Amendments and the numeric standard for

phosphorus are the most complex CWA actions the

Friends has undertaken. To challenge both the State and

Federal action which on its faces seems to be positive

administration of their responsibilities requires special

knowledge and skills just to be willing to take such a

challenge. There are no attorneys that Friends is aware of

with Mr. Childe‟s special experience who would be

willing to take on such litigation for an hourly rate less

than the community market rate! Friends‟ Tab 350,

Exhibit E, P. 3.

The affidavit of John Childe established that Mr. Childe has been licensed

to practice law in the State of Pennsylvania for thirty-five years; is admitted to

practice before the Supreme Court, the United States Court of Appeals for the

District of Columbia, and the Third Circuit and the Eleventh Circuit Courts of

Appeals. He has been admitted pro hac vice in the Southern District of Florida

representing Friends of the Everglades since 1993 in eight different cases dealing

with Everglades Restoration and the CWA. He has represented Friends of the

Everglades on Everglades Restoration and CWA issues in three Appeals before


29

the Eleventh Circuit Court of Appeals and twice before the Supreme Court. Since

the passage of the Everglades Forever Act in 1994, Mr. Childe has represented

Friends of the Everglades in opposing the Act. He was the attorney for Friends

before the District Court for the Southern District of Florida (Seitz, J.) (Case No.

00-935, DE77) which challenged the EPA Determination of 1999 that allegedly

adopted the previous Judge Davis‟ district court order which found the 1994

Everglades Forever Act to be in violation of the CWA. Mr. Childe also

represented Friends in the appeal of Judge Seitz‟ Opinion to this Court in Friends

of the Everglades v. EPA, Case No. 01-16482, at 3 (11th

Cir. July 19, 2002) [Case

No. 00-935, DE 83], (See pp 16-36 of Order of July 29, 2008, dealing with the

relevant history of the Everglades leading up to the Complaints. Friends Tab. 323,

RE 90-110.

Distinctive Knowledge or Specialized Skill Was “Needful”

The Magistrate Judge below found that “Plaintiffs could not have

successfully brought this litigation without counsel who had mastery of this

complex intersection of science and environmental law. The regulatory and

scientific issues raised in this action were extraordinarily complex, as evidenced by

the Court‟s lengthy order on the motions for summary judgment, and required

counsel with Mr. Childe‟s highly developed specialization.” Friends‟ Tab 395, RE

294.


30

The Magistrate Judge‟s Report and Recommendations were adopted in full

by the district court. Friends Tab 405, RE 292. In addition to the Magistrate

Judge‟s findings, Judge Gold found that “[b]ecause Mr. Childe has unequivocally

demonstrated that he possessed a distinctive knowledge or specialized skill

needful for this litigation I agree with Magistrate Judge McAliley that an upward

departure from the statutory rate is warranted for the highly-specialized legal

services rendered by Mr. Childe.” Tab 405, RE 294 . Judge Gold, in making this

determination for the district court, stated that “having presided over this matter

for approximately five years, and being intimately familiar with the nature of

these proceedings, I do not hesitate to conclude that Mr. Childe‟s profound

understanding of esoteric scientific principles and terms regarding water quality

standards (e.g. TBELS, WQBELS, BAPRTs, STAs etc.) constitutes a „specialized

skill‟ as opposed to „general knowledge and ability to be useful in all litigation‟.”

RE 295.

EPA argues that the issues raised in the Plaintiff‟s Complaints were not

complex, but were “fundamental Administrative law challenges to EPA‟s review

of Florida‟s EFA [Everglades Forever Act] Amendments and Phosphorus Rule.”

EPA Opening Brief, P. 32. EPA stated that while “it could be argued that any

specialization that Mr. Childe allegedly possessed was perhaps helpful, or that an

attorney unfamiliar with the CWA or the Everglades might have to spend


31

additional time on the specific controversy, those are not the relevant factors for

consideration under Pierce.” Id. EPA argued that such expertise was not

“necessary” or “essential,” EPA Opening Brief, P 34. But the district court found

otherwise, and based that finding on a review of the Record as a whole and five

years of presiding over the case.

As this Court observed in Jean, it is within the district court‟s discretion to

interpret whether a special factor of distinctive knowledge of specialized skill is

needful:

The dissent contents that attorneys practicing immigration law

do not have any “distinctive knowledge or specialized skill

needful for the litigation in question” within the meaning of

that phrase as it is used in Pierce, 108 S. Ct. at 255. [emphasis

added by the court]. The majority agrees that not every

immigration attorney or every immigration lawsuit warrants an

upward adjustment of hourly rates and we would suggest that

such is also the case in some patent or foreign law cases.

Lawyers and judges could spend the balance of time arguing

about the meaning of the phrase from Pierce. Interpretation of

this phrase is better left to the discretion of the district court

as application of the phrase will depend on the complexity

of the case (“the litigation in question”) and on the

experience (“distinctive knowledge”) and acquired expertise

(“specialized skill”) of the particular billing attorney. We

are confident that the district court can properly interpret

and apply the above quoted phrase to the facts of the case.

863 F.2d at 774 (emphasis (bold) added).


32

Thus, this Court has provided some guidance to district courts in evaluating

what is “needful for the litigation in question” by recommending they look to the

complexity of the case, the attorney‟s experience/distinctive knowledge, and the

attorney‟s acquired expertise/specialized skill. However, it is clearly within the

discretion of the district court to make the determination of whether the attorney‟s

distinctive knowledge or specialized skills were “needful for the litigation in

question.” The above review of Juanita Greene‟s affidavit in support of the motion

for fees, Friends Tab 350, Exhibit E, as well as the Friends of the Everglades

Amended Complaint, Friends‟ Tab 113, in conjunction with Summary Judgment

Order, Tab 323, (pages 21-28 hereto), support the opinion of the Judge below that,

“…Mr. Childe has unequivocally demonstrated that he possessed a distinctive

knowledge or specialized skill needful for this litigation.” is sufficient record

support for the district court‟s interpretation and conclusion that a fee enhancement

is warranted.

CONCLUSION

The district court‟s Judgment for Attorney Fees and Costs should be upheld,

and the EPA‟s Appeal Denied.


33

Respectfully Submitted,


ATTORNEY FOR FRIENDS REINER & REINER P.A.

OF THE EVERGLADES 9100 South Dadeland Blvd.



Tel: 305-712-0172 Tel: 305-670-8282


/S/ DAVID P. REINER, II

By:________________________________

DAVID P. REINER, II; Fla. Bar 416400




34

CERTIFICATE OF COMPLIANCE

WITH FED. R. APP.P. 32 (a)(7) (C)

I certify that, pursuant to Fed. R. App. P. 32(a)(7)(C) the attached Brief is

proportionately spaced, has a typeface of 14 points or more and contains

___7554_______ words.


_______________________________


35

CERTIFICATE OF SERVICE

I hereby certify that on May 17, 2011, copies of the foregoing responsive

Brief of the Friends of the Everglades were served by Overnight Delivery upon

counsel at the addresses listed below:

Tamara N. Rountree

Attorney, Department of Justice

P.O. Box 23795 (L‟Infant Plaza Station)

Washington, D.C. 20026-3795


ATTORNEY FOR FRIENDS REINER & REINER PA

OF THE EVERGLADES 9100 South Dadeland Blvd.



Tel: 305-712-0172 Tel: 305-670-8282



By:________________________________

DAVID P. REINER, II; Fla. Bar 416400




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