Environmental Defense Fund, Inc. v. Reilly, 90-1387
| Decision Date | 10 September 1993 |
| Docket Number | No. 90-1387,90-1387 |
| Parties | , 23 Envtl. L. Rep. 21,144 ENVIRONMENTAL DEFENSE FUND, INC., Petitioner, v. William K. REILLY, Administrator, U.S. Environmental Protection Agency, and U.S. Environmental Protection Agency, Respondents, American Petroleum Institute, Chemical Manufacturers Association, and Edison Electric Institute, et al., Intervenors. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Howard I. Fox, with whom Robert G. Dreher, and Karen L. Florini were on the brief for petitioner.
Elizabeth M. Ahern, Atty., Dept. of Justice, with whom Mary Elizabeth Ward, Atty., Dept. of Justice, and Thomas H. Beisswenger, Atty., E.P.A., were on the brief for respondents.
Gottlieb J. Frick and Ralph J. Colleli, Jr. entered appearances for intervenor American Petroleum Institute.
Hunter L. Prillaman and David F. Zoll entered appearances for intervenor Chemical Mfr's. Ass'n.
Douglas H. Green and Toni K. Allen entered appearances for intervenor Edison Elec. Institute, et al.
Before WALD, RUTH BADER GINSBURG, and D.H. GINSBURG, Circuit Judges.
Opinion for the Court filed by Circuit Judge D.H. GINSBURG.
The Environmental Defense Fund petitions for an award of attorneys' fees in the amount of $32,542.75. In the underlying litigation we vacated an Environmental Protection Agency rule for want of public notice and comment before promulgation. We now hold that the EDF was a "prevailing party" within the meaning of the Resource Conservation and Recovery Act and therefore is entitled to recover its attorneys' fees. Because one of the EDF's attorneys submitted intolerably excessive time entries, however, we deny all of the $17,773.50 in fees requested for her work. After making a further adjustment of $700, we award the EDF a fee of $14,069.25.
In 1980 the EPA promulgated a regulation governing hazardous waste management pursuant to the RCRA. The regulation provided in pertinent part:
(a) The Administrator shall list a solid waste as a hazardous waste only upon determining that the solid waste meets one of the following criteria: ...
(3) It contains any of the toxic constituents listed in Appendix VIII unless, after considering any of the following factors, the Administrator concludes that the waste is not capable of posing a substantial present or potential hazard to human health or the environment when improperly treated,stored, transported or disposed of, or otherwise managed....
40 C.F.R. Sec. 261.11(a)(3) (emphases added).
Intervenor American Petroleum Institute challenged this regulation. See Shell Oil Company v. EPA, 950 F.2d 741 (D.C.Cir.1991). In January 1990 the EPA entered into a settlement agreement whereby it amended Sec. 261.11(a)(3) to read as follows:
(a) The Administrator shall list a solid waste as a hazardous waste only upon determining that the solid waste meets one of the following criteria: ...
(3) It contains any of the toxic constituents listed in Appendix VIII and, after considering the following factors, the Administrator concludes that the waste is capable of posing a substantial present or potential hazard to human health or the environment when improperly 55 Fed.Reg. 18,276 (May 4, 1990) (emphases added). Deeming the amendment a technical correction that was "not intended to and [would] not affect existing Agency listing practices based upon the Agency's consistent interpretation of the 1980 regulatory language," the EPA decided not to give public notice of and solicit comment on the change. See id.
[303 U.S.App.D.C. 89] stored, transported or disposed of, or otherwise managed....
In July 1990 the EDF petitioned this court to set aside the EPA's amended rule on the ground that the amendment implemented a policy change and thus required notice and an opportunity for comment. The EDF argued that under the original regulation the EPA could list a waste upon determining only that the waste contained a toxic constituent; under the amended regulation, by contrast, before it could list a waste the EPA had to determine also that the waste was capable of posing a substantial present or potential hazard to human health or the environment.
Before the EDF was scheduled to file its brief on the merits, the parties settled their dispute and filed a joint motion for remand and dismissal. This court accordingly ordered that the 1990 amendment be vacated, that Sec. 261.11(a)(3) read as it did prior to the amendment, and that the case be remanded to the EPA.
As provided in the settlement agreement, the EPA then published a notice soliciting comment on its proposal to adopt anew its 1990 revision of Sec. 261.11(a)(3). See 56 Fed.Reg. 33,238 (July 19, 1991). The EPA again stated that "the proposed language is not intended to and will not affect existing Agency listing practices based upon the Agency's consistent interpretation of the 1980 regulatory language." After receiving comments, the Administrator adopted the proposed revision. The current version of Sec. 261.11(a)(3) is therefore identical to the regulation as first purportedly amended without public comment in 1990.
The EDF now seeks an award of attorneys' fees in the amount of $32,542.75 pursuant to 42 U.S.C. Sec. 6972(e). Of that total $7,972.50 is claimed for attorney time spent on the merits of the case, while $24,570.25 is claimed for attorney time spent attempting to recover the attorneys' fees.
The RCRA provides for the award of attorney's fees as follows:
The court, in issuing any final order in any action brought pursuant to this section or section 6976 of this title, may award costs of litigation (including reasonable attorney and expert witness fees) to the prevailing or substantially prevailing party, whenever the court determines such an award is appropriate.
42 U.S.C. Sec. 6972(e). In Farrar v. Hobby, --- U.S. ----, 113 S.Ct. 566, 121 L.Ed.2d 494 (1992), the Supreme Court explained that "a plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Id. at ----, 113 S.Ct. at 573; see also Hewitt v. Helms, 482 U.S. 755, 762, 107 S.Ct. 2672, 2676, 96 L.Ed.2d 654 (1987) (); Waterman S.S. Corp. v. Maritime Subsidy Bd., 901 F.2d 1119, 1122 (D.C.Cir.1990) (). The Court added that a plaintiff would not be entitled to recover its attorney's fee if it secured only a "technical" or an insignificant victory. Farrar, --- U.S. at ----, 113 S.Ct. at 574; accord Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792, 109 S.Ct. 1486, 1493, 103 L.Ed.2d 866 (1989).
When the plaintiff is the prevailing party, the court (on motion) calculates a "reasonable" attorney's fee based upon "the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate," Hensley v. Eckerhart, 461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983). Although the Supreme Court has said that "[a] request for attorney's fees should not result
[303 U.S.App.D.C. 90] in a second major litigation," Hensley, 461 U.S. at 437, 103 S.Ct. at 1941, when there is a dispute the "hours reasonably devoted to litigating attorney's fees are [also] compensable." Grano v. Barry, 783 F.2d 1104, 1113-14 (D.C.Cir.1986). In such a case, as the court is "expert[ ] in assessing the reasonableness of an attorney's fee award," we "scrutinize an attorney's fees with particular care," EDF v. EPA, 672 F.2d 42, 54 (D.C.Cir.1982) (citation omitted).
Generally a plaintiff that has obtained a remand for further proceedings is not at that point a "prevailing party" for the purpose of collecting its attorney's fee. Only if it ultimately succeeds on the merits of its underlying claim may it be awarded the attorney's fee it incurred in obtaining the remand. See Sullivan v. Hudson, 490 U.S. 877, 886, 109 S.Ct. 2248, 2254, 104 L.Ed.2d 941 (1989); Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980); Waterman, 901 F.2d at 1122; National Coalition Against Misuse of Pesticides v. Thomas, 828 F.2d 42, 44 (D.C.Cir.1987). The rationale for this rule is that "the award of [attorneys'] fees for corrective efforts that yield no real world benefit would reduce the normal deterrent to litigative nitpicking." Waterman, 901 F.2d at 1122.
The EPA belittles the EDF's victory as "purely procedural." But it succeeded in changing the regulation then in force, albeit subject to the agency's right later, if it chose to pursue the matter (as it did), to undo the change pursuant to notice-and-comment rulemaking. The present case is therefore like Action on Smoking and Health v. Civil Aeronautics Board, 713 F.2d 795 (D.C.Cir.1983). In that case ASH successfully challenged the CAB's purported revocation of a regulation without notice and comment; the court vacated the revocation order and directed the CAB to republish and retain the regulation in force "until such time as those provisions may be amended or revoked by proper rulemaking made after notice and comment proceedings." Id. at 797. Although we later denied as untimely the petitioner's request for its attorney's fee, we had no doubt that "[i]n the normal course ASH would be entitled to fees for this work." ASH v. CAB, 724 F.2d 211, 225 (D.C.Cir.1984). Similarly here, after vacating the amendment, the court ordered the EPA to restore the original...
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