Alabama Power Company v. Anne M. Gorsuch, as Administrator, Environmental Protection Agency, Sierra Club, Intervenors.

672 F.2d 1, 217 U.S. App. D.C. 148

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 5, 1982
• Docket: 78-1006
• Status: Published

Opinions

PER CURIAM:

Before us are applications for costs and attorneys’ fees emanating from the extensive litigation forerunning this court’s decision in Alabama Power Co. v. Costle.1 These we are to measure by the Clean Air Act’s generous provision on allowance thereof.² Doing so, we conclude that, with sizeable exceptions hereinafter noted, these requests should be granted.

I. STATUTORY AUTHORIZATION

Section 307(f) of the Act empowers us to award costs and reasonable attorneys’ fees “whenever ... appropriate.”³ The general tenor of that broad authorization need not detain us long. A year ago, in Metropolitan Washington Coalition for Clean Air v. District of Columbia,4 the court had occasion to explain the Act’s concept of appropriateness,⁵ and in two opinions today the court adds importantly to the delineation. Sierra Club v. Gorsuch⁶ deals directly with Section 307(f), which governs this case; Environmental Defense Fund v. Environmental Protection Agency⁷ treats Section 19(d) of the Toxic Substances Control Act,⁸ which also employs an “appropriate” standard.

We readily accept the valuable guidance these decisions abundantly afford. No useful purpose could be served by repeating the elaborate discussion they contain. It suffices merely to reiterate that the court, after careful examination of pertinent legislative history, has made clear that whether the party claiming costs or fees has prevailed does not control the inquiry on appropriateness, and that the dominant consideration is whether litigation by that party has served the public interest by assisting the interpretation or implementation of the Clean Air Act.⁹ With that, we proceed to apply to the facts at hand the principles our precedents announce.

II. ATTORNEYS’ FEES

A. Sierra Club and Environmental Defense Fund

These organizations were petitioners in some of the cases consolidated into the principal litigation, and in others were intervenors on the side of the Environmental Protection Agency (EPA). Sierra Club seeks $29,088 and Environmental Defense Fund (EDF) $5,880 as attorneys’ fees,¹⁰ based on an hourly rate of $48. EPA has not challenged that rate, and we have no doubt as to its reasonableness. EPA does, however, contest the inclusion of attorneys’ time for some activities.

More specifically, EPA opposes the request for fees for most of the work done by these groups as intervenors on its behalf, on the ground that their efforts were duplicative of the agency’s own efforts. If ever an intervenor can recover attorneys’ fees from a party on whose side it participated — a question we do not here reach — the justification would have to be a clear showing of some unique contribution of the intervenor to the strength of that party’s legal position. Here, the environmental groups have not demonstrated with any sort of particularity that their intervention added in any essential way to EPA’s stance on the issues involved.¹¹ Without deciding more, we hold that wherever the bounds on fee awards to such intervenors should be set, this threshold burden has not been met.¹²

We view differently, however, two superficially related but actually distinct matters. First, Sierra filed a brief in response to certain motions for reconsideration of our decision, and the parties have discussed fees therefor in the context of Sierra’s status as an intervenor. It was on specific request of the court, however, that Sierra dealt with one of the three issues that received approximately equal attention in the brief, and EPA concedes the propriety of fees for that work.¹³ We therefore allow them,¹⁴ without determining how awards of fees to intervenors might be handled in more typical situations. Second, on another facet of that brief — EPA’s motion for a stay of issuance of our mandate — Sierra and EPA were adversary parties. We accordingly approve the claim for attorneys’ services in that regard.¹⁵

We encounter little difficulty in granting Sierra attorneys’ fees for their activities as petitioners,¹⁶ nor in awarding the sum Sierra seeks principally for time spent in preparing materials supporting its request for such fees.¹⁷ In so doing, we reject EPA’s objection to the inclusion of approximately 68 hours of work devoted by Sierra to the case generally. Sierra accounts for the time in itemized fashion, and states that at least some of it went to coordinating procedural aspects of the litigation and in organizing a joint brief for the environmental petitioners, but it cannot relate the time expenditures to particular issues. In the overall circumstances of the case, we are content to approve in full the amounts requested.

EPA also resists inclusion of time required by research on an ex parte-contacts issue, which was later withdrawn to permit us to reach the substance of the exemptions for fugitive dust and 50 tons of particulate matter per year. This research plainly harmonized with the congressional objective underlying fee allowances; moreover, as heretofore we have observed, “decisions on fee-allowance cannot make wholesale substitutions of hindsight for the legitimate expectations of citizen plaintiffs.”¹⁸ We therefore have counted the time consumed by this activity in computing the grant of fees.

Finally, EPA objects to a reimbursement request by Sierra’s attorneys for such items as travel and postage in connection with the litigation simply because no receipted bills are presented. We are content to rely upon the integrity of counsel, and allow these expenses.¹⁹

B. The District of Columbia

This litigant seeks attorneys’ fees in the amount of $5,878.51 — a figure based on the rates it pays its attorney-employees and their supporting staff — plus an unspecified upward adjustment pursuant to Copeland v. Marshall.20 EPA contests the validity of any fee award to the District, as well as some of the specifics of the amount requested.

EPA’s main contention in essence is that although the District prevailed on both of the issues it raised, it does not qualify for attorneys’ fees under the Clean Air Act because the substantive position it took was not “pro-environment,” and because it litigated in furtherance of its economic interests and therefore did not need the prospect of an attorneys’-fee recovery as an inducement to advocate in the public interest. The suggestion that fee awards are limited to parties asserting “pro-environment” claims has no support in the words of the statute or its legislative history, and we accordingly reject it.²¹ As a governmental entity, the District was a representative of its citizenry, and an advocate for what it deemed best for those it governed. Without passing on the eligibility under Section 307(f) of a financially able nongovernmental party having no more than its own economic interests at heart,²² we perceive no reason for refusing a fee allowance here.²³

EPA advances three further contentions that we deem equally unmeritorious. First, it argues that the District’s motion for attorneys’ fees should be denied because it was not presented within the 14-day period prescribed by the Appellate Rules for filings of bills of costs.²⁴ The simple answer is that the time limit referred to does not apply to motions for attorneys’ fees.²⁵ Second, as to specific items within the amount requested, EPA opines that the number of hours dedicated to preparation of the motion for fees is disproportionate to the time given to the case itself. We do not agree. All of the time for which fees are sought was time actually spent; if anything, the District’s fee submissions were less fully prepared than we would wish. Having put forth numerous objections to the fee claim, EPA is scarcely in a position to fret over the amount of counsel time that the District exhausted in its quest for fees.

EPA’s third objection, again relative to the specific amount to be awarded, is that any adjustment pursuant to Copeland26 is out of order. The court today confirms the applicability of the Copeland methodology to environmental statutes utilizing the “appropriate” standard for attorneys’ fee awards,²⁷ and the only additional issue EPA raises is the propriety of an upward adjustment of fees for a governmental party. EPA has not advanced any legitimate reason why that step would contravene congressional intent or otherwise would be incorrect.²⁸ We discern none ourselves, and accordingly we approve attorneys’ fees in the District’s favor against EPA.²⁹

III. COURT COSTS

The environmental and the industry petitioners, along with the District of Columbia, ask for reimbursement of court costs. For the same reasons and in the same areas that we allow the environmental groups’ attorneys’ fees, they should recoup their costs.³⁰ The industry parties’ problem, however, is more complicated. They seek a recovery solely on the basis of the general costs statute³¹ and Appellate Rule 39(a).³² These provisions sanction cost awards only to winning parties, and in this large and complex body of cases none of the principals clearly prevailed. Reaching further outward, EPA asserts — without, however, citing any authority — that the industry parties could not found their cost claims on Section 307(f) because, they say, Congress obviously did not intend to subsidize all litigation under the Clean Air Act, and hardly contemplated the availability of Section 307(f) to financially resourceful parties who out of their own substantial economic interests would have litigated anyway. There is some support for this position,³³ and the industry group has made no response whatsoever to EPA’s contentions on that score. Courts have long declined to render decisions on important questions of far-reaching significance which have not been argued by the party who might benefit therefrom.³⁴ The exigencies of sound decisionmaking require us to decline for the moment an undertaking to interpret a statute the industry parties do not invoke, or explore a theory they do not advance, and accordingly we deny costs to them.

As to two smaller matters, however, the results of our consideration differ. We think EPA should reimburse the industry petitioners for the expense of copies of the legislative history appendix provided to it,³⁵ and for the outlay for transcripts of the oral argument in this court.³⁶ These represent EPA’s share of the total spent by the industry petitioners, who took the lead in the preparation of these items, and EPA has conceded its responsibility for a portion of such expenditures.³⁷

The District of Columbia seeks costs for its role in the litigation. Because it prevailed on both of the points it raised in its petitions, the District is, under the general costs statute,³⁸ entitled to be fully³⁹ recompensed for its costs.⁴⁰

An order will be entered to effectuate the rulings set forth herein.

OUTLINE OP DISSENT

Page

I. OVERVIEW ........-................ 8

II. THE MEANING OF “APPROPRIATE” ... 9

A. Applicable Statutes_________________ 9

B. Legislative History_________________ 10

C. Analysis__________________________ 13

1. Congress intended a “prevailing-plus" standard _________________ 14

2. The “plus” has no judicially cognizable meaning___________________ 15

a. Sierra Club and the “non-frlvolous" standard______________ 15

b. The “public interest"standard __ 18

c. Conclusion__________________ 24

III. THE INSTANT LITIGATION___________ 25

A. General Disposition_________________ 25

B. Remaining Issues___________________ 29

1. Environmentalist briefs duplicative oftheEPA’s___________________ 29

2. Other issues___________________ 31

IV. CONCLUSION ....................... 32

APPENDIX to dissent_______________________ 32

1 . 196 U.S.App.D.C. 161, 606 F.2d 1068 (1979).

2 . Clean Air Act § 307(f), 42 U.S.C. § 7607(f) (Supp. III 1979).

3 . “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.” Id.

4 . 205 U.S.App.D.C. 280, 639 F.2d 802 (1981).

5 . Id. at 282-283, 639 F.2d at 804-805. Although the opinion discusses § 307(f) of the Act, 42 U.S.C. § 7607(f) (Supp. III 1979), the basis of decision more properly was the comparably-worded § 304(d), 42 U.S.C. § 7604(d) (Supp. III 1979).

6 . 672 F.2d 33 (D.C.Cir. 1982).

7 . 672 F.2d 42 (D.C.Cir. 1982).

8 . 15 U.S.C. § 2618(d) (1976).

9 . Metropolitan Washington Coalition for Clean Air v. District of Columbia, supra note 4, 205 U.S.App.D.C. at 281-282, 639 F.2d at 803-804; Sierra Club v. Gorsuch, supra note 6, at 34-39; EDF v. EPA, supra note 7, at 47-50 (interpreting comparable provisions of the Toxic Substances Control Act).

10 . In their original motion for allowance of fees, Sierra sought $26,724 and EDF $5,880 for attorneys’ time. In a supplemental motion, Sierra requested an additional $2,364 therefor, resulting in the totals reported in text. These motions also enumerated attorneys’ expense items, one of which — the docketing fee in this court — is a court cost, and is later dealt with as such. See note 30 infra.

We note that, unlike the situation in EDF v. EPA, supra note 7, Sierra and EDF did not calculate a lodestar figure from prevailing attorney rates, to which adjustments for special case-related considerations might be made. We utilized that approach in a Title VII context in Copeland v. Marshall, 205 U.S.App.D.C. 390, 641 F.2d 880 (en banc) (1980), and its application to an environmental statute’s attomeys’fee provision was our principal task in EDF v. EPA, supra note 7, at 51-61. Since the fee-claimants do not invoke that methodology here, we do not resort to it.

11 . The environmental groups have addressed this point only briefly, and in conclusory rather than analytical fashion. Motion for Allowance of Counsel Fees at 5 (filed Apr. 18, 1980); Reply of Environmental Petitioners to Department of Justice Position on Petitioners’ Request for Attorneys’ Fees and Costs at 7-8 (filed Apr. 18, 1980); Reply to Department of Justice Position on Sierra Club’s Supplemental Motion for Attorneys’ Fees and Costs at 3 (filed Jan. 17, 1980).

12 . This ruling pertains to requests by Sierra for $3,357.60 and by EDF for $1,920 for intervention briefs, and by Sierra for $528 — one third of the total claim for its brief in response to motions for reconsideration, see text infra at note 13 — the amount that we attribute to its work on the question of which pollutants could be regulated under the “prevention of significant deterioration” provision.

13 . Respondents’ Response to Sierra Club’s Supplemental Motion for Allowance of Counsel Fees and Other Costs at 2 (filed Jan. 15, 1980).

14 . The allowance is $528, see note 12 supra, for the portion of the brief devoted to the “modification” issue.

15 . The amount approved is $528. See notes 12, 14 supra.

16 . The amounts are $23,366.40 for Sierra and $3,960 for EDF. The number, complexity and frequent interrelationships of the legal problems presented by these consolidated cases as a whole obviates the need for an issue-by-issue explication of our decision to award attorneys’ fees. Had it been that substantial questions of interpretation or administration of the Act were intermingled with questions demanding only mundane application of established law, we might find it necessary to address in more detail whether specific issues were of a kind justifying an allowance of fees. See Sierra Club v. Gorsuch, supra note 6, at 39-41.

17 . The amount claimed is $780.

18 . Metropolitan Washington Coalition for Clean Air v. District of Columbia, supra note 4, 205 U.S.App.D.C. at 282, 639 F.2d at 804. We have no doubt that the issue was advanced in earnest, and that, had it remained in the case, its resolution would have contributed importantly to administration of the Act. What we hold, then, is that we will not use hindsight to deny an otherwise appropriate recovery simply because a substantial issue, originally raised in good faith, is later withdrawn as a matter of legitimate litigation strategy.

19 . This award is for $359.81, which includes $181.05 in postage for briefs, the amount claimed by Sierra less what it spent for mailing of the intervenor brief; $117.26 in reproduction and postage costs for motions and miscellaneous filings, the amount requested by Sierra less one-third of the costs associated with its brief in response to the motions for reconsideration; and $61.50 for travel and meals, the full amount Sierra asks for.

20 . Supra note 10. The District also relies heavily on Evans v. Sheraton Park Hotel, 164 U.S.App.D.C. 86, 503 F.2d 177 (1974). The District’s use of the Copeland methodology is in contrast to the approach used by the environmental groups.. See note 10 supra.

21 . In providing for recovery of costs and attorneys’ fees, Congress indicated an intent to “encourage litigation which will assure proper implementation and administration of the act. or otherwise serve the public interest.” H.R.Rep. No.294, 95th Cong., 1st Sess. 337 (1977), reprinted in [1977] U.S.Code Cong. & Ad.News 1077, 1416. When a “non-pro-environment” entity resolves disputed issues through litigation, its accomplishment has as much potential for realizing these goals as when a “pro-environment” entity does so.

22 . See note 33 infra and accompanying text.

23 . In pursuing what it perceived to be the appropriate balance between the diverse interests of its citizens, the District sought a reading of the Act’s provision that may allow for greater economic development within the District’s geographic boundaries. This important and generalized governmental interest is not a disqualifying factor under § 307(f).

24 . See Fed.R.App.P. 39.

25 . EDF v. EPA, supra note 7, at 61.

26 . Copeland v. Marshall, supra note 10.

27 . EDF v. EPA, supra note 7, at 52.

28 . The two arguments urged by EPA are that any upward adjustment would constitute “enrichment” beyond verifiable costs, and that award of such a “bonus” is particularly inappropriate in the case of a governmental body with broad-based revenue-raising potential. The first of these contentions fails because it mistakenly perceives the Copeland methodology’s adjustments to the lodestar as a reward over and above what the attorney truly deserves in compensation. In truth and in essence, a lodestar adjustment is an attempt to calculate more precisely the market value of the services provided by the attorney. EPA’s second argument is simply irrelevant. EPA’s theory is bottomed on the notion that a local government will not be deterred by cost because it can always replenish its finances by increasing taxes. The fact that a governmental entity can raise funds through its taxing power does not make any less applicable to it the considerations that prompted Congress to authorize awards of attorneys’ fees.

29 . The amount of the award therefor is $7,348.13, the base amount sought by the District plus 25% because of delayed receipt of payment. The District requested an unspecified upward adjustment premised on other considerations, but our review — in light of EDF v. EPA, supra note 7, at 51-61—convinces us that an adjustment in this amount and on this basis is the appropriate disposition. It is warranted because “of the value of the use of the money” during the pendency of judicial proceedings. Copeland v. Marshall, supra note 10, 205 U.S.App.D.C. at 403, 641 F.2d at 893.

30 . See note 3 supra. The bill of costs submitted by the environmental groups contains no claim pertaining to any item for which we have disallowed attorneys’ fees. Accordingly, we approve in full the amount requested therein plus the appellate docket fee of $50, which should have been included as an item of costs rather than attorneys’ fees, see note 10 supra, and thus award Sierra Club and EDF costs against EPA in the amount of $2,712.81.

31 . 28 U.S.C. § 2412 (1976).

32 . Fed.R.App.P. 39(a).

33 . The clearest expression of congressional purpose in enacting statutes of this type is found in the legislative history of § 19(d) of the Toxic Substances Control Act, 15 U.S.C. § 2618(d) (1976)—which, as we earlier noted, uses the same “appropriate” standard as the provision of the Clean Air Act that controls this case. See text supra at note 8. During debate on the final version of § 19(d), Senator Magnuson, the ranking Senate Manager on the Conference Committee, stated:

It is not the intention of these provisions to provide an award for an individual or a group if that individual or group may stand to gain significant economic benefits through participation in the proceeding....

It is not intended that the provisions support participation of persons, including corporations or trade associations, that could otherwise afford to participate.... Whether or not the person’s resources are sufficient to enable participation would include consideration of ... the likelihood that the person would seek to participate in the proceeding whether or not compensation was available.

122 Cong.Rec. 32,855 (1976) (remarks of Senator Magnuson).

34 . Dupree v. Jefferson, 215 U.S.App.D.C. 43, 47 n.24, 666 F.2d 606, 610 n.24 (1981), (assertion made at oral argument, but rationale not provided either in briefs or at argument; court therefore declined to address question); Miller v. Avirom, 127 U.S.App.D.C. 367, 369-370, 384 F.2d 319, 321-322 (1967) (“points not asserted with sufflcierit precision to indicate distinctly the party’s thesis” normally not considered); Caperton v. Beatrice Pocahontas Coal Co., 585 F.2d 683, 692 (4th Cir. 1978) (when parties did not address an issue, court would not “select from the mass of authority on the subject arguments which might support the position which the notices of appeal suggest would have been advantageous to the plaintiffs”); Kemlon Prods. & Dev. Co. v. United States, 646 F.2d 223, 224 (5th Cir. 1981) (court will not decide a claim mentioned in brief but the merits of which were never addressed); Markowitz & Co. v. Toledo Metropolitan Hous. Auth., 608 F.2d 699, 707-708 (6th Cir. 1979) (court declined to decide issue apparent to it but not addressed by the parties); United States v. White, 454 F.2d 435, 439 (7th Cir. 1971), cert. denied, 406 U.S. 962, 92 S.Ct. 2070, 32 L.Ed.2d 350 (1972) (where issue has not been properly briefed as required by Fed.R.App.P. 28(a)(4), it is particularly appropriate to deem it waived where the court has “not been presented with sufficient information or argument to allow an intelligent disposition of [the] issue”); United States v. John Bernard Indus., Inc., 589 F.2d 1353, 1362 n.5 (8th Cir. 1979) (court will not decide issue raised in brief but as to which no authority is cited and no argument made); Pedicord v. Swenson, 431 F.2d 92, 93 (8th Cir. 1970) (“[questions not raised, briefed or argued will ordinarily be given no consideration by an appellate court”); Northwest Airlines, Inc. v. Air Line Pilots Ass’n, Int'l, 373 F.2d 136, 141 n.1 (8th Cir.), cert. denied, 389 U.S. 827, 88 S.Ct. 77, 19 L.Ed.2d 83 (1967) (court declined to decide issue apparent to it but not addressed by the parties); Harman v. Diversified Medical Inv. Corp., 524 F.2d 361, 365 (10th Cir. 1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1727, 48 L.Ed.2d 195 (1976) (court deemed issue inappropriate for review because of absence of legal authorities cited in support of conclusory argument and lack of factual basis in record).

35 . The allowance for this item is $458.84.

36 . The allowance for this item is $600.70.

37 . Respondent’s Response to Petitioners’ Bill of Costs at 3 (filed May 19, 1980). Lead counsel for the industry petitioners has assumed responsibility for distributing the shares of individual industry petitioners. Bill of Costs of Alabama Power Co. et al., Enclosure 2 at 1 (filed May 8, 1980).

³⁸

39 . Although some of these awards include costs for what might otherwise be considered an excessive number of copies of briefs, the number seems justified by the multiplicity of parties in the cases.

40 . We thus award it costs in the amount of $734.43 against EPA.