U.S. v. 27.09 Acres of Land

• Decision Date: 27 July 1993
• Docket Number: D,No. 1539,1539
• Citation: 1 F.3d 107
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. 27.09 ACRES OF LAND, more or less, situated in The Town of Harrison and The Town of North Castle; The County of Westchester, and unknown others, Defendants, Purchase Environmental Protective Association, Inc., Defendant-Intervenor-Appellant, Town of Harrison, Defendant-Intervenor. ocket 93-6031.
• Court: U.S. Court of Appeals — Second Circuit

Page 107

1 F.3d 107

UNITED STATES of America, Plaintiff-Appellee,

v.

27.09 ACRES OF LAND, more or less, situated in The Town of

Harrison and The Town of North Castle; The County

of Westchester, and unknown others, Defendants,

Purchase Environmental Protective Association, Inc.,

Defendant-Intervenor-Appellant,

Town of Harrison, Defendant-Intervenor.

No. 1539, Docket 93-6031.

United States Court of Appeals, Second Circuit.

Argued May 19, 1993.

Decided July 27, 1993.

Donald W. Stever, Jr. (Sidley & Austin, New York City, of counsel), for defendant-intervenor-appellant.

Diana J. Hassel, Asst. U.S. Atty., New York City (Roger S. Hayes, U.S. Atty., S.D.N.Y., Paul K. Milmed, Asst. U.S. Atty., of counsel), for plaintiff-appellee.

Before: WINTER and JACOBS, Circuit Judges, and MUKASEY, District Judge. ^*

JACOBS, Circuit Judge:

Defendant-intervenor-appellant Purchase Environmental Protective Association, Inc. (the "Association") appeals from an order of the United States District Court for the Southern District of New York (Lasker, J.), 808 F.Supp. 1030 (1992), denying the Association's motion for an award of fees and expenses under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412 (Supp.1993) ("EAJA"). The Association, a group of homeowners and merchants in Purchase, New York, had sought reimbursement under EAJA for litigation expenses it incurred as one of four parties invoking environmental laws to challenge the planned construction nearby of a new postal facility for Westchester County, New York. EAJA provides that, in a non-tort civil action between the United States and eligible parties, "a court shall award to a prevailing party other than the United States fees and other expenses ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. Sec. 2412(d)(1)(A).

In a thoughtful decision, the district court denied an award because it found that (a) the United States' position in this litigation was "substantially justified" within the meaning of the statute; and (b) the active participation on the same side as the Association by units of local government that are not eligible for awards under EAJA, 28 U.S.C. Sec. 2412(d)(2)(B), constituted a special circumstance making a fee award to the Association unjust. 808 F.Supp. at 1032. We vacate the district court's order and remand this matter for further consideration because no final judgment has been entered in this action terminating it for the purposes of EAJA, and therefore the Association's EAJA application was premature.

BACKGROUND

In March 1988 the United States filed a complaint in condemnation seeking to acquire land owned by the County of Westchester ("Westchester") on which the United States The selection of the site generated substantial controversy in response to which the Postal Service published four Environmental Assessments ("EA"s) and two "Wetlands Impact Reports" over the course of nearly two and a half years. The final EA and its appendices consisted of seven volumes containing extensive discussion of many possible environmental effects of the proposed facility.

                Postal Service ("Postal Service") planned to build a new general mail facility and vehicle maintenance facility.  The condemned land, located near the Westchester County Airport, has been referred to by the parties as the "Airport Site."   As the district court noted
                

808 F.Supp. at 1031.

The Association and the Town of Harrison ("Harrison") promptly moved to intervene in the condemnation proceeding as Westchester's co-defendants. The Association and the two governmental entities sought similar relief, chiefly an order enjoining the United States from condemning the Airport Site until the Postal Service had complied with the requirements set forth in the National Environmental Policy Act, 42 U.S.C. Secs. 4321-4347 (1988) ("NEPA"), and with the Postal Service's own wetlands regulations. The City of New York commenced a separate action to protect its watershed and drinking water resources, City of New York v. United States Postal Service, 760 F.Supp. 345 (S.D.N.Y.1991), which was deemed a related case. Thus by February 1991, Westchester, Harrison, the Association and the City of New York were aligned in these proceedings opposing the planned post office project. ¹

This litigation proceeded in two distinct phases. In the initial phase, the Association and Harrison pressed their motions to intervene and, along with Westchester, moved for preliminary injunctive relief and for partial summary judgment. The central issue raised by the substantive motions was whether the Postal Service was required to comply with all environmental review procedures before condemning the Airport Site. Resolution of this issue was delayed for over a year by stipulation of the parties and by passage of a bill in Congress that restricted funding for the facilities until the Postal Service considered alternative sites and prepared additional environmental evaluations. On May 15, 1990, the district court granted permissive intervention by the Association and Harrison, but denied the substantive motions in their entirety. United States v. 27.09 Acres of Land, 737 F.Supp. 277 (S.D.N.Y.1990) ("27.09 Acres I ").

Throughout this initial phase in the litigation, the Association was represented by the firm of Sidley & Austin. Having exhausted its litigation fund without obtaining relief, the Association terminated Sidley & Austin's engagement and substituted as counsel the Association's president, a lawyer who has been supplying his services without charge. Sidley & Austin's fees for representing the Association in this phase of the litigation are the fees that the Association now seeks to recover from the United States under EAJA.

After the issuance of 27.09 Acres I, the litigation entered a second phase, during which the Association became less active, joining in the submissions of Harrison and Westchester and relying on the experts retained by those parties. The Postal Service proceeded to perform the mandates of NEPA and its own regulations and (in October 1990) issued its final Environmental Assessment. The Postal Service also issued a finding that the proposed postal facilities would have no significant impact on the environment and concluded that a full Environmental Impact Statement ("EIS") was not required. In early 1991, Westchester, Harrison and the Association, now joined by the City of New York, moved for a preliminary injunction barring construction of the proposed facilities until the Postal Service prepared an EIS. On March 28, 1991, the district court granted this motion, holding that the movants "establish[ed] likely success in On June 17, 1991, the United States filed a Notice of Appeal seeking interlocutory review of the injunction issued pursuant to 27.09 Acres II. Soon thereafter, however, the Postal Service changed its construction plans and decided to build the required facilities on an already developed parcel of land which had just become available. On October 10, 1991, the United States abandoned its appeal. On October 15, 1991, the Association sought to renew its motion for summary judgment. (Why this initiative was taken is unclear; in any event, the record indicates that the Association did not pursue it.)

proving that the [Postal] Service's finding of no significant impact was arbitrary and capricious." United States v. 27.09 Acres of Land, 760 F.Supp. 345, 355 (S.D.N.Y.1991) ("27.09 Acres II ").

Since the Postal Service had no further intention of developing the Airport Site, it negotiated with Westchester to return the property and recover the money that the Postal Service had paid for it. The Federal Aviation Administration ("FAA") also entered the negotiations because of its interest in having the Airport Site dedicated solely to airport use. On November 19, 1991, the Postal Service, Westchester and the FAA entered into a Memorandum of Understanding effecting these objectives, and deeds were executed transferring the Airport Site back to Westchester County.

On June 15, 1992, the United States circulated among the parties a Stipulation and Order of Settlement and Dismissal of the condemnation action. The proposed stipulation contained a provision that precluded costs and attorneys' fees, and that would therefore preclude any EAJA application. Westchester executed the stipulation, but Harrison and the Association did not. The record on appeal does not indicate what effect, if any, was given the partially executed stipulation. According to the docket sheet, no such stipulation and order was filed.

On June 29, 1992, pursuant to procedures of the Administrative Office of the United States Courts, the Chief Judge of the district directed the closing of this and other superannuated cases in a "Minute Order" which reads in its entirety:

The attached list of cases having been pending for over three years, all presently contemplated...