Wilderness Society v. Morton, 72-1796 to 72-1798.

• Decision Date: 04 April 1974
• Docket Number: No. 72-1796 to 72-1798.,72-1796 to 72-1798.
• Parties: The WILDERNESS SOCIETY et al., Appellants, v. Rogers C. B. MORTON, Secretary of the Interior, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

495 F.2d 1026 (1974)

The WILDERNESS SOCIETY et al., Appellants, v. Rogers C. B. MORTON, Secretary of the Interior, et al.

Nos. 72-1796 to 72-1798.

United States Court of Appeals, District of Columbia Circuit.

Argued July 11, 1973.

Decided April 4, 1974.

As Amended June 12, 1974.

COPYRIGHT MATERIAL OMITTED

Dennis M. Flannery, Washington, D. C., argued in support of the bill of costs for appellants The Wilderness Society et al. John F. Dienelt, Washington, D. C., was also on the memorandum in support of the bill of costs.

Herbert Pittle, Atty., Dept. of Justice, argued in opposition to the bills of costs for federal appellees. Edmund B. Clark, Atty., Dept. of Justice, was on the memorandum in opposition to the bills of costs for federal appellees.

Robert E. Jordan, III, Washington, D. C., argued in opposition to the bills of costs for appellee Alyeska Pipeline Service Co. Paul F. Mickey, Washington, D. C., was also on the memorandum in opposition to the bills of costs.

Theodore L. Garrett, Washington, D. C., argued in opposition to the bills of costs for appellee State of Alaska. William H. Allen and Richard D. Copaken,

Washington, D. C., were on the memorandum in opposition to the bills of costs.

Thomas F. Hogan, Rockville, Md., was on the memorandum in support of the bill of costs for appellant The Cordova District Fisheries Union.

Before BAZELON, Chief Judge, and WRIGHT, LEVENTHAL, ROBINSON, MacKINNON, ROBB and WILKEY, Circuit Judges, sitting en banc.

J. SKELLY WRIGHT, Circuit Judge:

Appellants Wilderness Society, Environmental Defense Fund, Inc. and Friends of the Earth request an award of expenses and attorneys' fees related to the litigation they successfully prosecuted to bar construction of the trans-Alaska pipeline. See Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 479 F. 2d 842, cert. denied, 411 U.S. 917, 93 S. Ct. 1550, 36 L.Ed.2d 309 (1973). A bill of costs has also been filed by The Cordova District Fisheries Union, appellant in No. 72-1798. While the primary issue now before us concerns the propriety of assessing attorneys' fees against appellee Alyeska Pipeline Service Company, Alyeska has also raised objections to certain expenses in the bill of costs. We agree with the Government, however, that all expenses requested by Wilderness Society et al. are proper, see 28 U.S.C. § 1920 (1970); Ex parte Peterson, 253 U.S. 300, 318, 40 S.Ct. 543, 64 L.Ed. 919 (1920) (Brandeis, J.), and should be divided equally among Alyeska, the State of Alaska, and the United States. As it was not a prevailing party on any issue in its separate suit, Cordova is not entitled to costs. See 28 U. S.C. § 2412 (1970). Cf. Rule 54(d), Fed.R.Civ.P. With respect to the main issue posed, we hold that an award of attorneys' fees is appropriate and remand the case to the District Court to determine the fees.

I

There have always existed equitable exceptions to the traditional American rule barring recovery of attorneys' fees by a successful litigant. In cases in which a party has acted in bad faith, assessment of fees properly serves to punish that party's obdurate behavior. See Hall v. Cole, 412 U.S. 1, 5, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973). Another exception includes cases in which the plaintiff's suit confers a benefit on the members of an ascertainable class and in which an award of fees will serve to spread the costs of litigation among its beneficiaries. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970).

Neither of these historic exceptions is applicable here. Appellees' legal position as to the meaning of the Mineral Leasing Act and relevant administrative regulations, though ultimately rejected by the court, was manifestly reasonable and assumed in good faith, particularly in view of the long administrative practice supporting it. See Wilderness Society v. Morton, supra, 156 U.S. App.D.C. at 143-149, 479 F.2d at 864-870. And although the "common benefit" exception has been given expanded scope in recent cases, compare Hall v. Cole, supra, with Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939), we would have to stretch it totally outside its basic rationale to apply it here. As is discussed more fully below, this litigation may well have provided substantial benefits to particular individuals and, indeed, to every citizen's interest in the proper functioning of our system of government. But imposing attorneys' fees on Alyeska will not operate to spread the costs of litigation proportionately among these beneficiaries, the key requirement of the "common benefit" theory. See Bangor & Aroostook R. Co. v. Brhd of Loc. Firemen & Enginemen, 143 U.S. App.D.C. 90, 101, 442 F.2d 812, 823 (1971).

The Supreme Court has recently indicated, however, that the equitable power of federal courts to award attorneys' fees when the interests of justice so require is not a narrow power confined to rigid sets of cases. Rather, it "`is part of the original authority of the chancellor to do equity in a particular situation,'" Hall v. Cole, supra, 412 U.S. at 5, 93 S.Ct. at 1746, quoting Sprague v. Ticonic National Bank, supra, 307 U.S. at 166, 59 S.Ct. 777, and should be used whenever "`overriding considerations indicate the need for such a recovery.'" Id., quoting Mills v. Electric Auto-Lite Co., supra, 396 U.S. at 391-392, 90 S.Ct. at 625.

Recognizing their broad equitable power, some courts have concluded that the interests of justice require fee shifting in a third class of cases where the plaintiff acted as a "`private attorney general,' vindicating a policy that Congress considered of the highest priority." Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402, 88 S.Ct. 964, 966, 19 L.Ed.2d 1263 (1968). See, e. g., Brandenburger v. Thompson, 9 Cir., 494 F.2d 885, decided March 25, 1974); Natural Resources Defense Council v. EPA, 1 Cir., 484 F.2d 1331 (1973); Cooper v. Allen, 5 Cir., 467 F.2d 836 (1972); Donahue v. Staunton, 7 Cir., 471 F.2d 475 (1972), cert. denied, 410 U.S. 955, 93 S. Ct. 1419, 35 L.Ed.2d 687 (1973); Cole v. Hall, 2 Cir., 462 F.2d 777 (1972), affirmed on alternate rationale, 412 U.S. 1, 93 S.Ct. 1943, 36 L.Ed.2d 702 (1973); Knight v. Auciello, 1 Cir., 453 F.2d 852 (1972); Lee v. Southern Home Sites Corp., 5 Cir., 444 F.2d 143 (1971); United Steelworkers of America v. Butler Manufacturing Co., 8 Cir., 439 F.2d 1110, 1113 (1971); Sierra Club v. Lynn, W.D.Tex., 364 F.Supp. 834, 5 E.R.C. 1745 (1973); Stanford Daily v. Zurcher, N.D.Cal., 366 F.Supp. 18, 23-24 (1973); Harper v. Mayor and City Council of Baltimore, D.Md., 359 F.Supp. 1187, 1218 (1973); Calnetics Corp. v. Volkswagen of America, Inc., C.D.Cal., 353 F.Supp. 1219 (1973); La Raza Unida v. Volpe, N.D.Cal., 57 F.R.D. 94 (1972); Wyatt v. Stickney, M.D.Ala., 344 F. Supp. 387 (1972); NAACP v. Allen, M. D.Ala., 340 F.Supp. 703 (1972); Sims v. Amos, M.D.Ala., 340 F.Supp. 691 (1972); Bradley v. School Board of City of Richmond, E.D.Va., 53 F.R.D. 28 (1971), reversed, 4 Cir., 472 F.2d 318, (1972), cert. granted, 412 U.S. 937, 93 S.Ct. 2773, 37 L.Ed.2d 396 (1973). See also Note, Awarding Attorney and Expert Witness Fees in Environmental Litigation, 58 Corn.L.Rev. 1222, 1237-1246 (1973).

While this court has not previously had occasion to focus directly on the "private attorney general" rule in attorneys' fees, it stressed the salient consideration in Freeman v. Ryan, 133 U.S.App.D.C. 1, 3, 408 F.2d 1204, 1206 (1968), when it accompanied an award of attorneys' fees with the comment:

"Our objective is to proceed in accordance with equitable principles so as to reward the attorneys whose service in stopping an unauthorized payment has been of benefit to the class of private persons involved, and to the public interest in observance by administrative and executive officials of statutory limitations on their authority."

It is a paramount principle of equity that the court will go much farther both to grant and to withhold relief in furtherance of the public interest than when only private interests are involved. See Virginian Railway Co. v. System Federation No. 40, 300 U.S. 515, 552, 57 S.Ct. 592, 81 L.Ed. 789 (1937), where the Court added that the legislature's declaration of public interest and policy is "persuasive in inducing courts to give relief."

We find persuasive the arguments advanced by these courts in adopting a private attorney general exception to the traditional American rule.

"The violation of an important public policy may involve little by way of actual damages, so far as a single individual is concerned, or little in comparison with the cost of vindication * * *. If a defendant may feel that the cost of litigation, and, particularly, that the financial circumstances of an injured party may mean that the chances of suit being brought, or continued in the face of opposition, will be small, there will be little brake upon deliberate wrongdoing. In such instances public policy may suggest an award of costs that will remove the burden from the shoulders of the plaintiff seeking to vindicate the public right. * * *"

Knight v. Auciello, supra, 453 F.2d at 853. In much litigation, whether or not formally designated as a class action, a party sues not only to vindicate his own interests, which often are minor, but to enjoin injuries to a broad class — injuries which may be quite extensive when viewed collectively. See, e. g., Sierra Club v. Morton, 405 U.S. 727, 736-738 & 739 n. 15, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972); United States v. Students Challenging Regulatory Agency Procedures, 412 U.S. 669, 93 S.Ct. 2405, 37 L.Ed.2d 254 (1973). In such cases, "if successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts." Newman v. Piggie Park Enterprises, Inc., supra, 390 U.S. at 402, 88 S.Ct. at 966. When violation of a...