GOLDEN GATE AUDUBON SOC. v. US ARMY CORPS OF ENG.

• Decision Date: 30 August 1988
• Docket Number: No. 87-6063 TEH.,87-6063 TEH.
• Citation: 738 F. Supp. 339
• Court: U.S. District Court — Northern District of California
• Parties: GOLDEN GATE AUDUBON SOCIETY, INC., et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

738 F. Supp. 339

GOLDEN GATE AUDUBON SOCIETY, INC., et al., Plaintiffs, v. UNITED STATES ARMY CORPS OF ENGINEERS, et al., Defendants.

No. 87-6063 TEH.

United States District Court, N.D. California.

August 30, 1988.

Zach Cowan, San Francisco, Cal. and Alan Waltner, and Thomas Roy Gorman, Gorman & Waltner, Oakland, Cal., for plaintiffs.

Gail Cooper, U.S. E.P.A., Office of the Gen. Counsel, Karen L. Egbert, Environmental Defense Section, Donald A. Carr, Acting Asst. Atty. Gen., Karen L. Egbert, Thomas R. Lotterman, U.S. Dept. of Justice, Land & Natural Resources Div., Washington, D.C., and Joseph P. Russoniello, U.S. Atty. and Francis B. Boone, Asst. U.S. Atty., San Francisco, Cal., for other defendants.

Benjamin F. Wilson, Don G. Scroggin, and Brenda Mallory, Beveridge & Diamond, Washington, D.C., for City of Oakland, Port of Oakland and Bd. of Port Com'rs.

ORDER GRANTING FEES

THELTON E. HENDERSON, District Judge.

This matter comes before the Court on plaintiffs' motion for attorneys fees, following our Order of June 10 granting summary judgment to plaintiffs on their second cause of action. After careful consideration of the parties' papers, including the supplemental briefs requested by the Court, we hereby award fees of an unspecified amount to be paid by the U.S. Army Corps of Engineers ("Corps".) The parties shall meet and confer to determine the precise amount of fees due in accordance with this Opinion.

I. Fees Against the Corps.

1. Appropriate Fee-Shifting Statute.

We must first address which statute, if any, may be invoked to award fees to the plaintiffs. In our June 21, 1988 Amended Order, we found that we had jurisdiction over this case by virtue of the Clean Water Act, 33 U.S.C. § 1365(a)(1) and the Administrative Procedure Act (APA), 5 U.S.C. § 706 (via the general federal question statute, 28 U.S.C. § 1331). Congress has enacted fee-shifting statutes for parties who prevail under either of these acts. See fee-shifting provision in the Clean Water Act, 33 U.S.C. 1365(d), and the Equal Access to Justice Act, 28 U.S.C. § 2412 for suits brought under the APA.

Plaintiffs did not sue the Corps under the enforcement section of the Clean Water Act; nor could they do so, since that section allows suits against entities who are themselves in violation of an effluent standard or limitation. 33 U.S.C. § 1365(a). Plaintiffs urge that fees may still be awarded against the Corps under section 1365, because the Corps created a defense to the plaintiff's enforcement action against the Port of Oakland by disclaiming jurisdiction over the Distribution Center.

We must reject this argument. Section 1365(a)(1) is a private enforcement section which enables private citizens to sue private polluters and government agencies qua polluters. The section was not intended to allow citizens to challenge discretionary action of the government qua environmental regulator. That intent is apparent from the plain language of that section permitting citizens to sue "any person (including (i) the United States ...) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter ..." It is also revealed by passage of the following subsection, which allows suits against the EPA for its failure to perform a nondiscretionary duty. 33 U.S.C. § 1365(a)(2). Subsection (2)'s limitation would become superfluous if citizens could sue the EPA under subsection (1) for failing to perform discretionary duties.

Since plaintiffs could not sue the Corps directly under section 1365(a)(1), it follows that we may not assess fees against the Corps under the Clean Water Act.

However, the EAJA is a perfectly appropriate fee-shifting statute. That statute allows a court to award fees to a prevailing private party who has brought or defended a suit against the United States unless the court finds that the government's position was "substantially justified."¹ 28 U.S.C. § 2412(d)(1)(A). Therefore, we will analyze the remaining disputed issues under the EAJA.

2. Final Judgement Requirement.

Section 2412(d)(1)(B) states that "a party seeking an award of fees and expenses shall submit a fee application within thirty days of final judgment in the action."

The federal defendants construe this latter subsection to require the issuance of a final judgment before fees may be awarded. We do not agree. The House Committee report explicitly states that this subsection "should not be construed as requiring a final judgment on the merits before a court may award fees." H.R.Rep. No. 1418, 96th Cong., 2d Sess., 18, reprinted in 1980 U.S.Code Cong. & Adm.News 4953, 4997. Instead, "a fee award may ... be approved where the party has prevailed on an interim order which was central to the case." Id. at 4990.

Numerous courts interpreting the EAJA have awarded interim fees. For example, in Haitian Refugee Center v. Meese, 791 F.2d 1489, 1495 (11th Cir.1986), vacated in part regarding unrelated fees on fees portion, 804 F.2d 1573 (11th Cir.1986), the court approved a fee award under the EAJA even though the district court denied the defendant's Rule 58 motion for entry of judgment. Similarly, in Young v. Pierce, 822 F.2d 1376, 1377 (5th Cir.1987), the court upheld a fee award after plaintiffs won summary judgment on liability, but had not yet litigated the remedies phase.²

Thus, the EAJA does not require the issuance of a final judgment. Instead, the test is whether the moving party has prevailed "on the merits of an issue central to their lawsuit." Ray v. The Florida Cabinet, 845 F.2d 311, 313 (11th Cir.1988).

3. Prevailing Party Determination.

This test brings us to the defendants' second—and stronger—argument: they contend that plaintiffs have not yet prevailed in this litigation.

Both the Port and the federal defendants argue that we have merely remanded an erroneous agency determination for further agency review. The agency may ultimately uphold its jurisdictional disclaimer; in that event, plaintiffs' prior success before this Court would constitute a hollow procedural victory. Defendants rely heavily on Nat. Coal. Against Misuse of Pesticides v. Thomas, ("NCAMP") 828 F.2d 42 (D.C.Cir.1987). In that case, the court initially held that the EPA acted arbitrarily and capriciously in establishing a high tolerance level for the pesticide EDB. Specifically, the court ruled that the EPA impermissibly cited relations with foreign countries as a reason for setting a high EDB tolerance level. Rather than vacate the EPA's decision, the court directed the EPA to reconsider and decide whether that same level could be justified on other grounds. Id. at 43. In a subsequent opinion, the court upheld the EPA's decision to maintain that same level, this time based properly on health concerns. Id. at 44.

The plaintiffs then moved for attorneys fees, arguing that they prevailed by obtaining a remand order and judicial declaration that the EPA improperly relied on international relations factors. The court rejected this argument. The court first stated that the fee claiming party "must show that the `final result represents in a real sense a disposition that furthers their interest.'" Id. at 44, quoting Grano v. Barry, 783 F.2d 1104, 1108 (D.C.Cir.1986). The court must "`focus on the precise factual/legal conduct that the fee claimant has sought to change, and then determine if the outcome confers an actual benefit or release from burden.'" 828 F.2d at 44, quoting Grano, 783 F.2d at 1108-1109. Since the plaintiff's "real interest" was to ban or limit the use of EDB, and they did not achieve that goal, the court found that they were not the prevailing parties. The court stated that "procedural victories of this sort" do not qualify plaintiffs as prevailing parties. Id. at 44.

The facts of NCAMP resemble the facts of this case: here, we have found an agency's decision to be arbitrary and capricious, and have remanded the decision to the agency. While we have not upheld a second agency decision, as the court did in NCAMP, it is possible that we may do so. We note the similarities of the two cases. But we believe that Oregon Environmental Council v. Kunzman, 817 F.2d 484 (9th Cir.1987) states the differing law of this circuit.

In Kunzman, plaintiffs sued the EPA to enjoin the spraying of a pesticide that combats gypsy moth infestation. In the first phase of the litigation, the district court enjoined the spraying upon a finding that the EPA-prepared environmental impact statement (EIS) was inadequate. The district court granted interim fees for that victory. Id. at 489. In phase two of the litigation, plaintiffs challenged a second EIS, which the defendants vacated and withdrew shortly before trial. Id. at 490. In phase three, the EPA issued a third EIS, which the court also found deficient. In phase four, the EPA issued an addendum to the third EIS; the court upheld that final EIS and lifted the injunction.

Plaintiffs moved for fees for work performed in, inter alia, phase two of the case. The district court denied the fee request. It found that "although this litigation had some effect on the government's decision to supplement the second EIS, it was not the cause for the supplementation." Id. at 497.

The Ninth Circuit reversed and remanded the fees decision. The court stated that plaintiffs would be entitled to fees if they could show that the litigation was a "material factor" or played a "catalytic role" in obtaining the withdrawal of the second EIS. Id. Thus, the Ninth Circuit authorized fees for plaintiffs' action, even though plaintiffs never achieved their ultimate goal—the banning of the spraying, and "only" achieved an interim withdrawal of an EIS.

Similarly, in National Wildlife Federation v. Hanson, 18 ELR 20008, 20009 (E.D. N.C.1987), appeal pending, the court awarded fees to plaintiffs for a reversal and remand of a Corps' jurisdictional disclaimer similar to the one in this case. The court awarded fees, even though the...