484 F.2d 1331 (1st Cir. 1973), 72-1219, Natural Resources Defense Council, Inc. v. E.P.A.

Docket Nº:72-1219, 72-1224.
Citation:484 F.2d 1331
Party Name:NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. NATURAL RESOURCES DEFENSE COUNCIL, INC., and Project on Clean Air, et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
Case Date:October 01, 1973
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 1331

484 F.2d 1331 (1st Cir. 1973)

NATURAL RESOURCES DEFENSE COUNCIL, INC., et al., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

NATURAL RESOURCES DEFENSE COUNCIL, INC., and Project on Clean Air, et al., Petitioners,

v.

ENVIRONMENTAL PROTECTION AGENCY, Respondent.

Nos. 72-1219, 72-1224.

United States Court of Appeals, First Circuit.

October 1, 1973

Submitted July 16, 1973.

Page 1332

Richard E. Ayres, New York City, and Thomas B. Arnold, Boston, Mass., for petitioners.

Thomas C. Lee, Atty., Dept. of Justice, with whom Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark, and Martin Green, Attys., Dept. of Justice, were on brief, for respondent in case 72-1219.

John P. Hills, Atty., Dept. of Justice, with whom Kent Frizzell, Asst. Atty. Gen., Edmund B. Clark, and Martin Green, Attys. Dept. of Justice, were on brief, for respondent in case 72-1224.

Before COFFIN, Chief Judge, ALDRICH and CAMPBELL, Circuit Judges.

LEVIN H. CAMPBELL, Circuit Judge.

Petitioners in Natural Resources Defense Council, Inc. v. Environmental Protection Agency, 478 F.2d 875 (1st Cir. 1973), now request this court to award them attorneys' fees as well as costs against the Environmental Protection Agency [EPA] for their efforts in obtaining orders requiring EPA to comply with certain of its obligations under the Clean Air Amendments of 1970, 42 U.S.C. § 1857c-5 et seq. We hold that petitioners are entitled to recover reasonable attorneys' fees and costs.

Traditionally, a prevailing party has received costs but not attorneys' fees. Compare Ehrenzweig, Reimbursement of Counsel Fees and the Great Society, 54 Calif.L.Rev. 792 (1966), McCormick, Counsel Fees and Other Expenses of Litigation as an Element of Damages, 15 Minn.L.Rev. 619 (1931), and Posner, An Economic Approach to Legal Procedure and Judicial Administration, 2 J. Legal Studies 399, 428, 437 (1973) with Goodhart, Costs, 38 Yale L.J. 849 (1929) and Note, Distribution of Legal Expenses Among Litigants, 49 Yale L.J. 699 (1940). Moreover, sovereign immunity would prevent a court, without congressional consent, from awarding even costs against the federal government or one of its agencies. Only in 1966 did Congress, by statute of general application, waive immunity from conventional costs; but the broad waiver still does not extend to attorneys' fees. 28 U.S.C. § 2412, infra; United States v. Chemical Foundation, Inc., 272 U.S. 1, 47 S.Ct. 1, 71 L.Ed. 131 (1926); Cassata v. Federal Savings & Loan Insurance Corp., 445 F.2d 122 (7th Cir. 1971).

An early judicially-created exception to the no-fees rule was that attorneys'

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fees might be taxed to a private party who had sued or defended in bad faith. The award was to punish frivolous or ill-motivated litigation. See, e. g., Knight v. Auciello, 453 F.2d 852 (1st Cir. 1972); Comment, The Allocation of Attorney's Fees After Mills v. Electric Auto-Lite Co., 38 U.Chi.L.Rev. 316, 317-23 (1971). Another exception was made in equity proceedings where a plaintiff recovered, through the litigation, a fund in which others were entitled to share. Costs "as between solicitor and client" were allowed to be paid from the fund not to punish the loser, but to prevent unfair advantage to nonlitigant beneficiaries. See, e. g., Trustees v. Greenough, 105 U.S. 527, 532, 26 L.Ed. 1157 (1882). Cf. Philadelphia v. Chas. Pfizer & Co., 345 F.Supp. 454, 482-483 (S.D.N.Y.1972).

Building upon the "fund" rationale, courts allowed attorneys' fees in other situations where to do so resulted in a more equitable allocation of the costs of suit among all who benefitted. See, e. g., Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939) (plaintiff's victory, in consequence of stare decisis, established the claims of fourteen other trusts pertaining to the same bonds; fees were assessed against the bonds.) Cf. Hornstein, Legal Therapeutics: The "Salvage" Factor in Counsel Fee Awards, 69 Harv.L.Rev. 658 (1956). Recently the notion of spreading the litigation costs equitably among all the beneficiaries has been coupled with that of encouraging suits which promote the public interest. 1 Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 88 S.Ct. 964, 19 L.Ed.2d 1263 (1968); Lee v. Southern Home Sites Corp., 444 F.2d 143 (5th Cir. 1971); La Raza Unida v. Volpe, 57 F.R.D. 94 (N.D.Cal.1972); Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.1972). When private litigation vindicates a significant public policy and, at the same time, creates a widespread benefit, policy today favors awarding attorneys' fees against a party who exists to serve or represent the interests of all those benefitted. Thus in Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), a corporation was made to shoulder the cost of litigation that benefitted all shareholders and simultaneously supported the policy of the securities laws. In Hall v. Cole, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973), a union was made to pay the attorneys' fee of disappointed union office seekers who had sued the union; the plaintiffs' victory aided the entire membership by furthering union democracy. But cf. Bradley v. School Board, 472 F. 2d 318 (4th Cir. 1972), cert. granted, 412 U.S. 937, 93 S.Ct. 2773, 37 L.Ed.2d 396 (1973). While the above cases do not go so far as to exact attorneys' fees from an agency of the federal government, courts have often awarded fees against state agencies or officials. Ojeda v. Hackney, 452 F.2d 947 (5th Cir. 1972); Taylor v. Perini, 359 F.Supp. 1185 (N.D. Ohio 1973) (civil rights); La Raza Unida v. Volpe, 57 F.R.D. 94, 101-102 n. 11 (N.D.Cal.1972) (environmental protection); Sims v. Amos, 340 F.Supp. 691, 694 n. 8 (M.D.Ala.1972) (reapportionment); NAACP v. Allen, 340 F.Supp. 703, 708, 710 n. 10 (M.D.Ala.1972) (desegregation).

Page 1334

See also Note, Allowance of Attorney Fees in Civil Rights Litigation Where the Action is not Based on a Statute Providing for an Award of Attorney Fees, 41 Cinn.L.Rev. 405 (1972).

In the present case (putting aside for the moment the issue of sovereign immunity) the principles mentioned favor an award of attorneys' fees against the EPA. Petitioners have usefully championed the policy of the Clean Air Amendments of 1970, 42 U.S.C. § 1857c-5 et seq., to "clear the air." They have sought to compel strict compliance by the EPA with legislation the purpose of which is to "speed up, expand, and intensify the war against pollution in the United States with a view to assuring that the air we breathe throughout the nation is wholesome once again." H.R. Rep. No. 91-1146, 91st Cong., 2d Sess. 2 (1970); 1970 U.S.Code Cong. & Admin. News 5356. Congress has, indeed, shown a desire to pursue its goal with the assistance of such private litigants. 2 In the House Report just quoted the "regrettably slow" progress in controlling air pollution is blamed on a scarcity of skilled personnel available to enforce control measures and on a lack of aggressiveness by EPA's predecessor agency in enforcing the law. The public suit seems particularly instrumental to the statutory scheme when against the EPA itself, for only the public-certainly not the polluter-has the incentive to complain if the EPA falls short in one or another respect; yet the lack of measurable interest on the part of any individual member of the public, and the difficulties inherent in complex litigation in a rapidly developing field of law, make the economics of citizen suits a serious problem.

In any event, petitioners have activated traditional adversary machinery for bringing issues before a court. As a result, policies of the EPA have been corrected and others, upheld, have been removed from the arena of dispute. Presumptively the public has benefitted- not only in Rhode Island and Massachusetts but nationally, as neither air pollution nor the movement of citizenry respect state boundaries, and some of the legal principles at issue have national as well as regional import. Petitioners have thus helped to enforce, refine and clarify the law. They can be said to have assisted the EPA in achieving its statutory goals.

Under the circumstances it seems fair and sensible that the EPA should be taxed for petitioners' reasonable costs and attorneys' fees. The EPA has been assigned by Congress the task of supervising pollution control. It handles the public funds appropriated for that purpose. To allocate petitioners' reasonable costs and attorneys' fees to it is to spread them ultimately among the taxpaying public, which receives the benefits of this litigation. The EPA stands here in the same relation to the citizen as did the corporation in Mills to its shareholders and the union in Hall to its members. See Comment, The Allocation of Attorney's Fees After Mills v. Electric Auto-Lite Co., 38 U.Chi.L.Rev. 316, 329-36 (1971).

Sovereign immunity, however, poses a problem that was not present in Mills or Hall. Prior to 1966 the controlling general statute, 28 U.S.C. § 2412, provided flatly that "[t]he United States shall be liable for fees and costs only when such liability is expressly provided for by Act of Congress." 62 Stat. 973 (1948). This was consistent with the Supreme Court's earlier formulation in United States v. Chemical Foundation, Inc., supra, 272 U.S. at 20, 47 S.Ct. at 8 that "[t]he general rule is that, in the absence of a statute directly authorizing it, courts will not give judgment against the United States for costs or expenses." The Court there held that officials of

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the United States could not, by the act of bringing suit for the government, waive its sovereign immunity against the imposition of costs and fees. Only Congress could do so.

Congress liberalized § 2412 in 1966. It now provides:

"Except as...

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