Alyeska Pipeline Service Company v. Wilderness Society 8212 1977

Citation95 S.Ct. 1612,44 L.Ed.2d 141,421 U.S. 240
Decision Date12 May 1975
Docket NumberNo. 73,73
CourtUnited States Supreme Court

Under the 'America Rule' that attorneys' fees are not ordinarily recoverable by the prevailing litigant in federal litigation in the absence of statutory authorization, respondents, which had instituted litigation to prevent issuance of Government permits required for construction of the trans-Alaska oil pipeline, cannot recover attorneys' fees from petitioner based on the 'private attorney general' approach erroneously approved by the Court of Appeals, since only Congress, not the courts, can authorize such an exception to the American rule. Pp. 247-271.

161 U.S.App.D.C. 446, 495 F.2d 1026, reversed.

Robert E. Jordan, III, Washington, D.C., for petitioner.

Dennis M. Flannery, Washington, D.C., for respondents.

Mr. Justice WHITE delivered the opinion of the Court.

This litigation was initiated by respondents Wilderness Society, Environmental Defense Fund, Inc., and Friends of the Earth in an attempt to prevent the issuance of permits by the Secretary of the Interior which were required for the construction of the trans-Alaska oil pipeline. The Court of Appeals awarded attorneys' fees to respondents against petitioner Alyeska Pipeline Service Co. based upon the court's equitable powers and the theory that respondents were entitled to fees because they were performing the services of a 'private attorney general.' Certiorari was granted, 419 U.S. 823, 95 S.Ct. 39, 42 L.Ed.2d 47 (1974), to determine whether this award of attorneys' fees was appropriate. We reverse.


A major oil field was discovered in the North Slope of Alaska in 1968.1 In June 1969, the oil companies constituting the consortium owning Alyeska2 submitted an application to the Department of the Interior for rights-of-way for a pipeline that would transport oil from the North Slope across land in Alaska owned by the United States,3 a major part of the transport system which would carry the oil to its ultimate markets in the lower 48 States. A special interdepartmental task force studied the proposal and reported to the President. Federal Task Force on Alaskan Oil Development: A Preliminary Report to the President (1969), in App. 78—89. An amended application was submitted in December 1969, which requested a 54-foot right-of-way, along with applications for 'special land use permits' asking for additional space alongside the right-of-way and for the construction of a road along one segment of the pipeline.4

Respondents brought this suit in March 1970, and sought declaratory and injunctive relief against the Secretary of the Interior on the grounds that he intended to issue the right-of-way and special land-use permits in violation of § 28 of the Mineral Leasing Act of 1920, 41 Stat. 449, as amended, 30 U.S.C. § 185,5 and without compliance with the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq.6 On the basis of both the Mineral Leasing Act and the NEPA, the District Court granted a preliminary injunction against issuance of the right-of-way and permits. Wilderness Society v. Hickel, 325 F.Supp. 422 (DC 1970).

Subsequently the State of Alaska and petitioner Alyeska were allowed to intervene.7 On March 20, 1972, the Interior Department released a six-volume Environmental Impact Statement and a three-volume Economic and Security Analysis.8 After a period of time set aside for public comment, the Secretary announced that the requested permits would be granted to Alyeska. App. 105—138. Both the Mineral Leasing Act and the NEPA issues were at that point fully briefed and argued before the District Court. That court then decided to dissolve the preliminary injunction, to deny the permanent injunction, and to dismiss the complaint.9

Upon appeal, the Court of Appeals for the District of Columbia Circuit reversed, basing its decision solely on the Mineral Leasing Act. 156 U.S.App.D.C. 121, 479 F.2d 842 (1973) (en banc). Finding that the NEPA issues were very complex and important, that deciding them was not necessary at that time since pipeline construction would be enjoined as a result of the violation of the Mineral Leasing Act, that they involved issues of fact still in dispute, and that it was desirable to expedite its decision as much as possible, the Court of Appeals declined to decide the merits of respondents' NEPA contentions which had been rejected by the District Court.10 Certiorari was denied here. 411 U.S. 917, 93 S.Ct. 1550, 36 L.Ed.2d 309 (1973).

Congress then enacted legislation which amended the Mineral Leasing Act to allow the granting of the permits sought by Alyeska11 and declared that no further action under the NEPA was necessary before construction of the pipeline could proceed.12

Congress then enacted legislation § 1651 et seq. (1970 ed., Supp. III).

With the merits of the litigation effectively terminated by this legislation, the Court of Appeals turned to the questions involved in respondents' request for an award of attorneys' fees.13 161 U.S.App.D.C. 446, 495 F.2d 1026 (1974) (en banc). Since there was no applicable statutory authorization for such an award, the court proceeded to consider whether the requested fee award fell within any of the exceptions to the general 'American rule' that the prevailing party may not recover attorneys' fees as costs or otherwise. The exception for an award against a party who had acted in bad faith was inapposite, since the position taken by the federal and state parties and Alyeska 'was manifestly reasonable and assumed in good faith . . ..' Id., at 449, 495 F.2d at 1029. Application of the 'common benefit' exception which spreads the cost of litigation to those persons benefiting from it would 'stretch it totally outside its basic rationale . . ..' Ibid.14 The Court of Appeals nevertheless held that respondents had acted to vindicate 'important statutory rights of all citizens . . .,' id., at 452, 495 F.2d, at 1032; had ensured that the governmental system functioned properly; and were entitled to attorneys' fees lest the great cost of litigation of this kind, particularly against well-financed defendants such as Alyeska, deter private parties desiring to see the laws protecting the environment properly enforced. Title 28 U.S.C. § 241215 was thought to bar taxing any attorneys' fees against the United States, and it was also deemed inappropriate to burden the State of Alaska with any part of the award.16 But Alyeska, the Court of Appeals held, could fairly be required to pay one-half of the full award to which respondents were entitled for having performed the functions of a private attorney general. Observing that '(t)he fee should represent the reasonable value of the services rendered, taking into account all the surrounding circumstances, including, but not limited to, the time and labor required on the case, the benefit to the public, the skill demanded by the novelty or complexity of the issues, and the incentive factor,' 161 U.S.App.D.C., at 456, 495 F.2d, at 1036, the Court of Appeals remanded the case to the District Court for assessment of the dollar amount of the award.17


In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys' fee from the loser. We are asked to fashion a far-reaching exception to this 'American Rule'; but having considered its origin and development, we are convinced that it would be inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation in the manner and to the extent urged by respondents and approved by the Court of Appeals.

At common law, costs were not allowed; but for centuries in England there has been statutory authorization to award costs, including attorneys' fees. Although the matter is in the discretion of the court, counsel fees are regularly allowed to the prevailing party.18

During the first years of the federal-court system, Congress provided through legislation that the federal courts were to follow the practice with respect to awarding attorneys' fees of the courts of the States in which the federal courts were located,19 with the exception of district courts under admiralty and maritime jurisdiction which were to follow a specific fee schedule.20 Those statutes, by 1800, had either expired or been repealed.

In 1796, this Court appears to have ruled that the Judiciary itself would not create a general rule, independent of any statute, allowing awards of attorneys' fees in federal courts. In Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306, 1 L.Ed. 613, the inclusion of attorneys' fees as damages21 was overturned on the ground that '(t)he general practice of the United States is in oposition (sic) to it; and even if that practice were not strictly correct in principle, it is entitled to the respect of the court, till it is changed, or modified, by statute.' This Court has consistently adhered to that early holding. See Day v. Woodworth, 13 How. 363, 14 L.Ed. 181 (1852); Oelrichs v. Spain, 15 Wall. 211, 21 L.Ed. 43 (1872); Flanders v. Tweed, 15 Wall. 450, 21 L.Ed. 203 (1873); Stewart v. Sonneborn, 98 U.S. 187, 25 L.Ed. 116, 40 L.Ed.2d 703 (1879); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717—713, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967); F.D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 126—131, 94 S.Ct. 2157, 2163—2166 (1974).

The practice after 1799 and until 1853 continued as before, that is, with the federal courts referring to the state rules governing awards of counsel fees, although the express legislative authorization for that practice had expired. 22 By legislation in 1842, Congress did give this Court authority to prescribe the items and amounts of costs which could be taxed in federal courts but the Court took no action under this statutory...

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