Sierra Club v. E.P.A.
| Citation | 248 U.S.App.D.C. 107,769 F.2d 796 |
| Decision Date | 02 August 1985 |
| Docket Number | Nos. 82-1384,82-1412,82-1845 and 82-1889,s. 82-1384 |
| Parties | , 248 U.S.App.D.C. 107, 15 Envtl. L. Rep. 20,869 SIERRA CLUB and Natural Resources Defense Council, Inc., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Company, et al., Kennecott Minerals Co., Tennessee Valley Authority, States of New York, et al., State of Vermont, American Petroleum Institute, et al., Intervenors. COMMONWEALTH OF PENNSYLVANIA, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Anne M. Gorsuch, Administrator, Respondent, States of New York, et al., Alabama Power Company, et al., State of Vermont, American Petroleum Institute, et al., Intervenors. SIERRA CLUB AND NATURAL RESOURCES DEFENSE COUNCIL, INC., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent, Alabama Power Company, et al., American Petroleum Institute, et al., Intervenors. COMMONWEALTH OF PENNSYLVANIA, Petitioner, v. U.S. ENVIRONMENTAL PROTECTION AGENCY and Anne M. Gorsuch, Administrator, Respondent, Alabama Power Company, et al., American Petroleum Institute, et al., Intervenors. |
| Court | United States Courts of Appeals. United States Court of Appeals (District of Columbia) |
On Petitioners' Motion for Award of Costs of Litigation, Including Reasonable Attorneys' Fees.
Before EDWARDS, Circuit Judge, and McGOWAN and MacKINNON, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge McGOWAN.
This petition for attorneys' fees under section 307(f) of the Clean Air Act, 42 U.S.C. Sec. 7607(f) (1982), seeks compensation for the petitioners' attorneys' work in Sierra Club v. Environmental Protection Agency, 719 F.2d 436 (D.C.Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 3571, 82 L.Ed.2d 870 (1984). The petitioners there sought from this court direct review of regulations proposed by the Environmental Protection Agency (EPA) to implement Congress's 1977 amendments to the Clean Air Act, Clean Air Act Amendments of 1977, Pub.L. No. 95-95, 91 Stat. 685 (). The petitioners met with varying degrees of success on the various issues they brought before this court. The petitioners also successfully opposed the efforts of an intervenor to persuade the Supreme Court to grant a writ of certiorari. The government did not participate in the litigation before the Supreme Court. The petitioners here seek fees for their work before both this court and the Supreme Court, from the government and the intervenors, respectively. We grant the petitioners $51,360.52 in fees and costs from the government for their work before this court, but deny them any fees from the intervenors.
We treat first the request for fees against the government. The starting point for any calculation of attorneys' fees is the "lodestar," the product of a reasonable hourly rate and the number of hours reasonably expended on substantive issues on which the petitioner met the statutory threshold of success. See Copeland v. Marshall, 641 F.2d 880, 891 (D.C.Cir.1980) (en banc ). Next, we discuss whether there should be any enhancement of the lodestar in this case. We then decide the amount of fees due for the attorneys' work on the fee petition. Finally, we discuss the inappropriateness of awarding the petitioners fees against the intervenors in this case.
Section 307(f) of the Clean Air Act provides in full:
In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate.
42 U.S.C. Sec. 7607(f) (1982). There are two judicial glosses on this broad provision. First, the party awarded fees must have met with at least some success on the merits. See Ruckelshaus v. Sierra Club, 463 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983). Second, the party must have served the public interest by assisting in the proper implementation of the statute. See Alabama Power Co. v. Gorsuch, 672 F.2d 1, 3 (D.C.Cir.1982) (per curiam) (); Carson-Truckee Water Conservancy District v. Secretary of the Interior, 748 F.2d 523, 525-26 (9th Cir.1984) (), cert. denied, --- U.S. ----, 105 S.Ct. 2139, 85 L.Ed.2d 497 (1985); see also H.R.Rep. No. 294, 95th Cong., 1st Sess. 337 (1977), U.S.Code Cong. & Admin. News 1977, pp. 1077, 1416 (). There is little question in this case that the petitioners' extensive and partly successful challenges to a complex and important set of EPA regulations satisfy this second criterion. We therefore focus our attention upon the degree of success requisite to an award of attorneys' fees.
Most fee statutes limit the beneficiaries to "prevailing" parties. See, e.g., 42 U.S.C. Sec. 1988 (1982) (); 5 U.S.C. Sec. 552(a)(4)(E) (). A significant body of jurisprudence has been developed to determine when a party "prevails" for the purposes of a fee award. See, e.g., Maher v. Gagne, 448 U.S. 122, 129-30, 100 S.Ct. 2570, 2574-75, 65 L.Ed.2d 653 (1980) (); Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (per curiam) ().
Congress, however, specifically stated that awards under section 307(f) are not to be limited to "prevailing" parties:
The committee did not intend that the court's discretion to award fees under this provision should be restricted to cases in which the party seeking fees was the "prevailing party."
H.R.Rep. No. 294, at 337, U.S.Code Cong. & Admin. News 1977 at 1416. The Supreme Court has held that Congress did not thereby intend to allow the award of fees to parties wholly unsuccessful on the merits. Ruckelshaus v. Sierra Club, 463 U.S. at 693-94, 103 S.Ct. at 3281-82. Congress simply intended by section 307(f) to make eligible for fee awards a set of litigants intermediate in size between the group of litigants eligible as prevailing parties and the group of all litigants.
Because the Ruckelshaus Court was faced with a petitioner wholly unsuccessful on the merits, id. at 681, 103 S.Ct. at 3278, it did not reach the question of precisely what showing would be necessary for an award of fees to a partly successful litigant. The Court did, however, provide some guidance. The requisite success had to be more than "trivial" or "purely procedural," id. at 688 n. 9, 103 S.Ct. at 3278 n.9, but the court awarding the fees should not become mired in details such as whether the success is "substantial" or on a "central issue." Id. Congress has also provided some guidance. As a matter of policy, we know that the award of fees under section 307(f) should help to "assure proper implementation and administration of the act," H.R.Rep. No. 294, at 337, U.S.Code Cong. & Admin. News 1977 at 1416. Moreover, in discussing a similar fee provision in the Clean Air Act of 1970, Congress stated that the underlying action must be "legitimate." S.Rep. No. 1196, 91st Cong., 2d Sess. 38 (1970) (discussing section 304(d)). 1 We believe that it is a fair characterization of the intent of Congress and the directive of the Supreme Court to state that a party who is awarded fees under section 307(f) must meet with a modicum of success on the merits before it is eligible for an award of fees, and we apply that standard here.
The petitioners clearly achieved a modicum of success--indeed, a good deal of success--in the litigation taken as a whole, see infra pp. 803-07 (), and are therefore eligible for some fees. To decide that a party is eligible for some fees, however, is not necessarily to determine that it is eligible for fees on all claims it made before the court. In the context of statutes awarding fees to prevailing parties, for example, the court must examine all the distinct issues in the case and determine on an issue-by-issue basis whether the petitioning party is eligible for fees on each issue. See, e.g., Martin v. Lauer, 740 F.2d 36 (D.C.Cir.1984).
The Supreme Court has spoken on this issue most recently in Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). When a prevailing party succeeds on only some of its claims, at least two questions must be addressed:
First, did the plaintiff fail to prevail on claims that were unrelated to the claims on which he succeeded? Second, did the plaintiff achieve a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award?
Id. at 434, 103 S.Ct. at 1939. Where a plaintiff presents in one lawsuit "distinctively different claims for relief that are based on different facts and legal theories," id., the court cannot allow a plaintiff to recover fees on the unsuccessful claims: "The congressional intent to limit awards to prevailing parties requires that these unrelated claims be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim." Id. at 435, 103 S.Ct. at 1940 (footnote omitted). A plaintiff should not be able to force his opponent to pay for the legal services involved in bringing groundless claims simply because those unsuccessful claims were brought in a lawsuit that included successful claims.
We believe that the rationale of the Hensley Court in requiring an issue-by-issue consideration of success is applicable to this case as well. 2 In Hensley, the Court noted that a party should not be able to "piggybac...
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