National Wildlife Federation v. F.E.R.C.

• Decision Date: 16 March 1989
• Docket Number: No. 84-7325,84-7325
• Parties: 19 Envtl. L. Rep. 20,774 NATIONAL WILDLIFE FEDERATION, Idaho Wildlife Federation, Petitioners, and The Nez Perce Tribe, Intervenor-Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 542

870 F.2d 542

19 Envtl. L. Rep. 20,774

NATIONAL WILDLIFE FEDERATION, Idaho Wildlife Federation, Petitioners and The Nez Perce Tribe, Intervenor-Petitioner, v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent.

No. 84-7325.

United States Court of Appeals Ninth Circuit.

March 16, 1989.

Before BROWNING and ALARCON, Circuit Judges, and STEPHENS, ^* District Judge.

JAMES R. BROWNING, Circuit Judge.

The National Wildlife Federation and the Idaho Wildlife Federation petitioned this court to review the issuance of seven preliminary permits by the Federal Energy Regulatory Commission under the Federal Power Act, 16 U.S.C. Secs. 791a-825r (1982) ("FPA"). We vacated and remanded to the Commission. National Wildlife Fed'n v. FERC, 801 F.2d 1505 (9th Cir.1986). The Federations now seek attorney's fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(d) (1982 & Supp.1987) ("EAJA").

I.

In Tulalip Tribes v. FERC, 749 F.2d 1367, 1368 (9th Cir.1984), this court read 28 U.S.C. Sec. 2412(d)(1)(A), which allows attorney's fees "in addition to any costs awarded," to forbid an award of attorney's fees where costs are barred by statute, as they are by Sec. 317 of the Federal Power Act, 16 U.S.C. Sec. 825p.

However, after Tulalip Tribes, Congress amended Sec. 2412(d)(1)(A) by adding the underlined phrase:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States....

Equal Access to Justice Act, Extension and Amendment Sec. 2(a)(2), Pub.L. No. 99-80, 99 Stat. 183, 184 (1985).

Although the amended section does not expressly state fees are available in the absence of costs, the House Committee on the Judiciary said:

The language of section 2412(d)(1)(A) expresses the view that prevailing parties shall be awarded attorney's fees and, when available, costs as well. This interpretation ratifies the approach taken by four circuits. [citations] Thus, the Committee rejects the interpretations of the statute by the 9th Circuit. See Tulalip Tribes of Washington v. Federal Energy Regulatory Commission, 749 F.2d 1367 (9th Cir.1984).

H.R.Rep. No. 120, 99th Cong., 1st Sess., Pt. 1, at 17, reprinted in 1985 U.S.Code Cong. & Admin.News 132, 145.

The amendment specifically allows fee awards in actions for judicial review of agency decisions, precisely the type of action involved in Tulalip Tribes and in this case. The amendment could not have been intended to modify only the clause that precedes it, as section 2412(a), which contains language quite similar to that clause, was not similarly amended.

We conclude the amendment reflects congressional intent to overrule Tulalip Tribes. But see Hirschey v. FERC, 777 F.2d 1, 7 (D.C.Cir.1985) (Scalia, J., concurring).

II.

The Commission argues that because the Tribe is an intervenor rather than a party, an award of attorney's fees is prohibited by Sec. 502 of the Energy and Water Development Appropriation Act, enacted on December 22, 1987 as part of the Continuing Appropriations Resolution for Fiscal Year 1988 Sec. 502, Pub.L. No. 100-202, 101 Stat. 1329-1, 1329-129 (1987). That section provided:

None of the funds in this Act shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in this Act. This prohibition bars payment to a party intervening in an administrative proceeding for expenses incurred in appealing an administrative decision to the courts.

Contrary to the Commission's contention, section 502 does not prohibit an award of attorney's fees; it only prohibits use of "funds in th[at] Act" to pay such an award. For the same reason, section 502 does not relieve the Commission of the obligation to pay an award; the Commission may pay an award from other funds. See 28 U.S.C. Sec. 2412(d)(4) ("Fees and other expenses awarded under this subsection to a party shall be paid by any agency over which the party prevails from any funds made available to the agency by appropriation or otherwise.") (emphasis added).

In any event, Congress deleted the second sentence of Sec. 502 when it appropriated funds for fiscal 1989. See 1989 Energy and Water Development Appropriations Act Sec. 502, Pub.L. No. 100-371, 102 Stat. 857, 874 (1988). An award of attorney's fees is therefore payable from funds in the 1989 act.

III.

The Federations must establish they were "prevailing part[ies]" in the underlying suit. 28 U.S.C. Sec. 2412(d)(1)(A). As the Court said in Hensley v. Eckerhart:

A typical formulation is that plaintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.

461 U.S. 424, 433, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (internal quotation omitted). ¹ A prevailing party is one who succeeds on any significant issue even though other issues are unreached, remanded, or prove unsuccessful. Escobar Ruiz v. INS, 787 F.2d 1294, 1297-98 (9th Cir.1986). ²

In the proceedings below, the Federation contended the Commission was required to take a number of actions before issuing the preliminary permits challenged here. The Commission refused to take these steps, the Director of the Office of Electric Power Regulation issued the preliminary permits, and the Commission rejected the Federations' appeal and request for rehearing. 801 F.2d at 1506.

On review in this court, the Federations challenged the Commission's decision on five theories: (1) the Commission's refusal to adopt a comprehensive plan and to fashion a coordinated study process for the Salmon River Basin violated the FPA; (2) the Commission violated the Pacific Northwest Electric Power Planning and Conservation Act, 16 U.S.C. Secs. 839--839h (1982) ("Northwest Act"), by failing to ensure "equitable treatment" of fish and wildlife; (3) the Commission violated the Northwest Act by failing to consider the Fish and Wildlife Program promulgated by the Northwest Power Planning Council; (4) the decision to issue permits without first preparing an environmental impact statement violated the National Environmental Policy Act, 42 U.S.C. Secs. 4321-4347 (1982) ("NEPA"); and, (5) the decision violated the Nez Perce Treaty, 12 Stat. 957 (1855), by interfering with the Tribe's treaty right to take fish. 801 F.2d at 1506-07, 1513-15.

We did not reach the second, fourth, and fifth claims, id. at 1515, and therefore the Federations cannot be deemed to have prevailed on them.

With regard to the first claim, we found no evidence to support the Commission's decision not to formulate a comprehensive plan and a coordinated study process for the basin and were thus "unable to determine on the present record whether the Commission's decision [was] 'arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.' " Id. at 1511 (quoting 5 U.S.C. Sec. 706(2)(A)). Accordingly, we vacated the challenged permits and remanded the matter to the Commission without deciding whether the FPA required the comprehensive plan and coordinated study process the Federations sought. Id. at 1512-13.

We conclude this victory is insufficient to establish the Federations as "prevailing part[ies]" under EAJA. While fees may be granted under EAJA prior to final judgment, a party must win "some relief on the merits of his claims." Hanrahan v. Hampton, 446 U.S. 754, 757, 100 S.Ct. 1987, 1989, 64 L.Ed.2d 670 (1980) (per curiam) (emphasis added). The mere attainment of remand or new trial will not ordinarily support an award of fees. Swenson v. Heckler, 801 F.2d 1079, 1080 (9th Cir.1986) (unsigned order) (remand); United States v. 2.61 Acres, 791 F.2d 666, 672 (9th Cir.1985) (per curiam) (new trial). Instead parties must "achieve[ ] some of the benefit [they] sought in bringing suit," Hensley, 461 U.S. at 433, 103 S.Ct. at 1939, not merely an opportunity to seek that benefit anew. See Jensen v. City of San Jose, 806 F.2d 899, 901 (9th Cir.1986) (en banc).

We conclude, however, that the Federations are "prevailing parties" under EAJA with respect to the third claim. We determined that 16 U.S.C. Sec. 839b(h)(11)(A)(ii) required the Commission to "consider the Council's Program to the fullest extent practicable" in evaluating all permit applications affecting the Columbia River and its tributaries. 801 F.2d at 1515. This determination supports an award of fees under the principles stated in Mantolete v. Bolger, 791 F.2d 784 (9th Cir.1986). Mantolete established a limited exception to the rule that a party who wins a new trial is not a "prevailing party" entitled to attorney's fees. We decided fees were warranted because:

All of the issues on which Ms. Mantolete has prevailed involve[d] significant legal principles affecting the substantive rights of the parties. Our decision clarifie[d] and strengthen[ed] the right ... to be free from the kind of discrimination that the Rehabilitation Act was intended to eradicate. Our decision also impose[d] specific duties on federal employers to eliminate employment discrimination against handicapped individuals. The significance of this decision goes well beyond the particular facts of th[e] case.

Id. at 787. ³ The Federations' victory in this case is similar.

The very purpose of the Northwest Act, which authorized creation of the Council and directed the development of the Program, was to "protect, mitigate and enhance the fish and wildlife, including related spawning grounds and habitat, of the Columbia River and its tributaries," 16 U.S.C. Sec. 839(6), and to aid in the development of hydroelectric power in the Columbia River Basin. Id. Sec. 839(1); see also 801 F.2d...