Alabama Power Co. v. Gorsuch

Decision Date05 February 1982
Docket NumberNo. 78-1006,78-1006
Citation217 U.S.App.D.C. 148,672 F.2d 1
Parties, 217 U.S.App.D.C. 148, 12 Envtl. L. Rep. 20,218 ALABAMA POWER COMPANY, et al., Petitioners * v. Anne M. GORSUCH, as Administrator, Environmental Protection Agency, et al., Respondents, * Sierra Club, et al., Intervenors. *
CourtU.S. Court of Appeals — District of Columbia Circuit

Before ROBINSON, Chief Judge, and WILKEY and GINSBURG, Circuit Judges.


Dissenting opinion by WILKEY, Circuit Judge.


Before us are applications for costs and attorneys' fees emanating from the extensive litigation forerunning this court's decision

in Alabama Power Co. v. Costle. 1 These we are to measure by the Clean Air Act's generous provision on allowance thereof. 2 Doing so, we conclude that, with sizeable exceptions hereinafter noted, these requests should be granted.


Section 307(f) of the Act empowers us to award costs and reasonable attorneys' fees "whenever ... appropriate." 3 The general tenor of that broad authorization need not detain us long. A year ago, in Metropolitan Washington Coalition for Clean Air v. District of Columbia, 4 the court had occasion to explain the Act's concept of appropriateness, 5 and in two opinions today the court adds importantly to the delineation. Sierra Club v. Gorsuch 6 deals directly with Section 307(f), which governs this case; Environmental Defense Fund v. Environmental Protection Agency 7 treats Section 19(d) of the Toxic Substances Control Act, 8 which also employs an "appropriate" standard.

We readily accept the valuable guidance these decisions abundantly afford. No useful purpose could be served by repeating the elaborate discussion they contain. It suffices merely to reiterate that the court, after careful examination of pertinent legislative history, has made clear that whether the party claiming costs or fees has prevailed does not control the inquiry on appropriateness, and that the dominant consideration is whether litigation by that party has served the public interest by assisting the interpretation or implementation of the Clean Air Act. 9 With that, we proceed to apply to the facts at hand the principles our precedents announce.

A. Sierra Club and Environmental Defense Fund

These organizations were petitioners in some of the cases consolidated into the principal litigation, and in others were intervenors on the side of the Environmental Protection Agency (EPA). Sierra Club seeks $29,088 and Environmental Defense Fund (EDF) $5,880 as attorneys' fees, 10 based on an hourly rate of $48. EPA has not challenged that rate, and we have no doubt as to its reasonableness. EPA does, however, contest the inclusion of attorneys' time for some activities.

More specifically, EPA opposes the request for fees for most of the work done by these groups as intervenors on its behalf, on the ground that their efforts were duplicative of the agency's own efforts. If ever an intervenor can recover attorneys' fees from a party on whose side it participated-a question we do not here reach-the justification would have to be a clear showing of some unique contribution of the intervenor to the strength of that party's legal position. Here, the environmental groups have not demonstrated with any sort of particularity that their intervention added in any essential way to EPA's stance on the issues involved. 11 Without deciding more, we hold that wherever the bounds on fee awards to such intervenors should be set, this threshold burden has not been met. 12

We view differently, however, two superficially related but actually distinct matters. First, Sierra filed a brief in response to certain motions for reconsideration of our decision, and the parties have discussed fees therefor in the context of Sierra's status as an intervenor. It was on specific request of the court, however, that Sierra dealt with one of the three issues that received approximately equal attention in the brief, and EPA concedes the propriety of fees for that work. 13 We therefore allow them, 14 without determining how awards of fees to intervenors might be handled in more typical situations. Second, on another facet of that brief-EPA's motion for a stay of issuance of our mandate-Sierra and EPA were adversary parties. We accordingly approve the claim for attorneys' services in that regard. 15

We encounter little difficulty in granting Sierra attorneys' fees for their activities as petitioners, 16 nor in awarding the sum Sierra seeks principally for time spent in preparing materials supporting its request for such fees. 17 In so doing, we reject EPA's objection to the inclusion of approximately 68 hours of work devoted by Sierra to the case generally. Sierra accounts for the time in itemized fashion, and states that at least some of it went to coordinating procedural aspects of the litigation and in organizing a joint brief for the environmental petitioners, but it cannot relate the time expenditures to particular issues. In the overall circumstances of the case, we are content to approve in full the amounts requested.

EPA also resists inclusion of time required by research on an ex parte-contacts issue, which was later withdrawn to permit us to reach the substance of the exemptions Finally, EPA objects to a reimbursement request by Sierra's attorneys for such items as travel and postage in connection with the litigation simply because no receipted bills are presented. We are content to rely upon the integrity of counsel, and allow these expenses. 19

                for fugitive dust and 50 tons of particulate matter per year.  This research plainly harmonized with the congressional objective underlying fee allowances; moreover, as heretofore we have observed, "decisions on fee-allowance cannot make wholesale substitutions of hindsight for the legitimate expectations of citizen plaintiffs."  18  We therefore have counted the time consumed by this activity in computing the grant of fees
B. The District of Columbia

This litigant seeks attorneys' fees in the amount of $5,878.51-a figure based on the rates it pays its attorney-employees and their supporting staff-plus an unspecified upward adjustment pursuant to Copeland v. Marshall. 20 EPA contests the validity of any fee award to the District, as well as some of the specifics of the amount requested.

EPA's main contention in essence is that although the District prevailed on both of the issues it raised, it does not qualify for attorneys' fees under the Clean Air Act because the substantive position it took was not "pro-environment," and because it litigated in furtherance of its economic interests and therefore did not need the prospect of an attorneys'-fee recovery as an inducement to advocate in the public interest. The suggestion that fee awards are limited to parties asserting "pro-environment" claims has no support in the words of the statute or its legislative history, and we accordingly reject it. 21 As a governmental entity, the District was a representative of its citizenry, and an advocate for what it deemed best for those it governed. Without passing on the eligibility under Section 307(f) of a financially able nongovernmental party having no more than its own economic interests at heart, 22 we perceive no reason for refusing a fee allowance here. 23

EPA advances three further contentions that we deem equally unmeritorious. First, it argues that the District's motion for attorneys' fees should be denied because it was not presented within the 14-day period EPA's third objection, again relative to the specific amount to be awarded, is that any adjustment pursuant to Copeland 26 is out of order. The court today confirms the applicability of the Copeland methodology to environmental statutes utilizing the "appropriate" standard for attorneys' fee awards, 27 and the only additional issue EPA raises is the propriety of an upward adjustment of fees for a governmental party. EPA has not advanced any legitimate reason why that step would contravene congressional intent or otherwise would be incorrect. 28 We discern none ourselves, and accordingly we approve attorneys' fees in the District's favor against EPA. 29

prescribed by the Appellate Rules for filings of bills of costs. 24 The simple answer is that the time limit referred to does not apply to motions for attorneys' fees. 25 Second, as to specific items within the amount requested, EPA opines that the number of hours dedicated to preparation of the motion for fees is disproportionate to the time given to the case itself. We do not agree. All of the time for which fees are sought was time actually spent; if anything, the District's fee submissions were less fully prepared than we would wish. Having put forth numerous objections to the fee claim, EPA is scarcely in a position to fret over the amount of counsel time that the District exhausted in its quest for fees.


The environmental and the industry petitioners, along with the District of Columbia, ask for reimbursement of court costs. For the same reasons and in the same areas that we allow the environmental groups' attorneys' fees, they should recoup their costs. 30 The industry parties' problem, however, is more complicated. They seek a recovery solely on the basis of the general costs statute 31 and Appellate Rule 39(a). 32 These provisions sanction cost awards only to winning parties, and in this large and complex body of cases none of the principals clearly prevailed. Reaching further outward, EPA asserts-without, however, citing any authority-that the industry parties could not found their cost claims As to two smaller matters, however, the results of our consideration differ. We think EPA should reimburse the industry petitioners for the expense of copies of the legislative history appendix provided to it, 35 and for the outlay for transcripts of the oral argument in this court. 36 These represent EPA's...

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