Who Pays for Litigation: Recent Developments in Attorneys Fees Law

Kenneth L. Rosenbaum

Editors' Summary: Fee shifting provisions continue to be a vital concern both for those who seek the awards and those who may have to pay them. The law of fee shifting has swung through a series of changes in the past ten years, with Congress and a few courts promoting awards while the Supreme Court has generally discouraged them. Two developments in recent months well illustrate this pattern: Congress has revived and amended the Equal Access to Justice Act, expanding opportunites to claim fees from the federal government, and the D.C. Circuit in Sierra Club v. EPA has applied recent Supreme Court rulings to carefully scrutinize fee requests under the "appropriate" standard of the Clean Air Act. This Comment reviews those developments and also previews the issues in Pennsylvania v. Delaware Valley Citizens' Council for Clean Air, an attorneys fees case the Supreme Court recently agreed to hear.

[15 ELR 10348]

In most American lawsuits, each side bears the burden of paying its own attorneys. In practice, this burden can be a strong disincentive to sue or a strong incentive to settle. Although the result may be fewer cases before the crowded courts, sometimes the public interest is better served by having cases fully and fairly litigated. Congress has recognized this and has created several statutory provisions for shifting the burden of paying fees.

Two sorts of fees shifting provisions are often invoked in environmental suits. The first is a general provision found in the Equal Access to Justice Act (EAJA)¹ allowing some parties to claim fees against the federal government where its position has not been substantially justified. The object of the provision is to prevent the government from using its size and the threat of litigation to unreasonably bully or ignore small parties. The other is a specific provision found in many environmental statutes that allows courts to shift fees in citizen enforcement suits or in challenges to agency regulations, where "appropriate."² Congress wished to encourage successful plaintiffs in these suits, as they help further the goals of the environmental laws.³

In the past few months, two significant events have affected the law of fee shifting: Congress has revived and amended EAJA, and the District of Columbia Circuit has handed down a decision exploring awards under the "appropriate" standard. Another important development may be in the offing: just last month the Supreme Court granted review of a Third Circuit citizen enforcement case involving the use of fee multipliers, compensation for in-house counsel, and other fee shifting issues. This comment briefly reviews these recent developments in the law of fee shifting.

The Equal Access to Justice Act

First enacted in 1980, EAJA⁴ was an experiment. Believing that the financial strength and expertise of the federal government often overwhelmed the smaller participants in agency and judicial adjudications, allowing the United States to win by weight of resources, not force of law,⁵ Congress provided that such litigators could claim attorneys [15 ELR 10349] fees if the government's position was notsubstantially justified.⁶

Although the legislation made it possible for nonprofit groups of any size to seek fees, it was not intended as a public-interest-group free-lunch act. According to the legislative history, EAJA's drafters wanted to aid small business and individuals and offered the bill in the spirit of deregulation.⁷ Congress hoped it might even serve to discourage litigation, or at least make the federal government more careful in initiating suits.⁸

Congress also feared that allowing fees might prove overly costly. The Department of Justice estimated up to $125 million in fees might be won annually.⁹ So the Act was framed as an experiment,¹⁰ to expire October 1, 1984.¹¹

In 1984, Congress judged the experiment a success. The Act proved to cost much less than predicted — in three years, the government paid out less than four million dollars.¹² Courts made fewer and smaller fee awards than Congress had expected.¹³ Congress passed a reauthorization, H.R. 5479,¹⁴ to make the fee shifting provisions permanent. The President vetoed it, though, expressing fears that unless the bill included a more restrictive or more straightforward eligibility test, litigation over whether a party was entitled to fees could prove unnecessarily taxing.¹⁵

This year, Congress tried again and succeeded in passing a bill acceptable to the President. The bill revived and retroactively amended the old Act, making fees available under the new, permanent provisions for suits brought on or after October 1, 1984.¹⁶

The new Act retains the basic criterion for awarding fees: fees are available to prevailing parties where the position of the United States was not substantially justified.¹⁷ However, the Act makes clear that the "position" refers to the position of the United States that led to the adjudication or trial, not the position taken at trial.¹⁸ And the position may be a position taken by default, through a failure to act, not just a position established by formal agency action.¹⁹ Further, to address the President's concern about extensive discovery and litigation over whether fees are due, the Act limits the determination of justification to the record made in the action for which fees are sought.²⁰ The legislative history notes that "substantially justified" means more than merely "reasonable." An action reversed because it was arbitrary and capricious or not supported by substantial evidence is almost certainly not substantially justified.²¹ On the other hand, the Act also contains a new reason for denying fees: where the party seeking them has unreasonably protracted the proceedings.²²

The amended EAJA broadens the class of parties that may be eligible for fees. The old Act applied only to individuals whose net worth was less than one million dollars, corporations or associations with net worth below five million, nonprofit groups, and businesses with fewer than 500 employees.²³ The new Act raises the net worth limits to two million and seven million respectively, and expressly includes local governments among those eligible.²⁴ However, the amendments do not raise the limit of $75 per hour for fees, to be exceeded only if justified by cost of living increases or by a special factor, such as the scarcity of qualified attorneys.²⁵

The legislative history declares that the prevailing party in litigation should be awarded costs as well as fees.²⁶ The [15 ELR 10350] statement should settle a split among the circuits, disapproving the position taken by the Ninth Circuit.²⁷

The legislative history also suggests that the Ninth Circuit erred in another ruling, this one dealing with the timing of the fee application. The Act requires the fee request to be filed within 30 days of final judgment, and defines a final judgment as one "that is final and not appealable . . . includ[ing] an order of settlement."²⁸ In Auke Bay Concerned Citizens' Advisory Council v. Marsh,²⁹ the Ninth Circuit denied fees to a party that had filed a fee request after the lower court had entered a permanent injunction, but several months before the court entered final judgment as formally defined in the Federal Rules of Civil Procedure. The House report on the bill expressly criticizes Auke Bay, and encourages courts to avoid overly technical approaches to construction of the Act's time-of-filing requirements.³⁰

Finally, the Act includes some new provisions governing fee awares in administrative adjudications.³¹ It clarifies that the agency rather than its adjudicative officer has the power to make the final administrative decision on fees.³² The new Act does not give the United States power to appeal an administrative fee award,³³ and changes the standard for judicial review of administrative awards from "abuse of discretion" to "substantial evidence."³⁴

Fees Under the "Appropriate" Standard: Sierra Club v. EPA

Almost every environmental citizen suit provision and many judicial review provisions allow courts to award attorneys fees where "appropriate."³⁵ This standard is easier for parties to meet than the EAJA standard. A party may collect fees under it even if the party has not completely prevailed in its case and even if the government's position was reasonable, so long as the litigation has furthered the goals of the act at issue.³⁶ Also, the "appropriate" provisions do not bar parties based on net worth or size, do not set caps on hourly rates, and do not limit liability for fees to the federal government.³⁷

The District of Columbia Circuit had been a liberal interpreter of the "appropriate" standard, even awarding fees to a party that had lost on the merits but had served the public interest by helping the court resolve complex regulatory issues.³⁸ The Supreme Court put an end to the liberal line in 1983 when it reversed the circuit in Ruckelshaus v. Sierra Club, a Clean Air Act fees case, ruling that an award to a losing party is never appropriate.³⁹ Sierra Club v. Environmental Protection Agency (EPA),⁴⁰ a recent D.C. Circuit case, represents the circuit's first extensive discussion of the "appropriate" standard since that reversal. It examines what sort of success a party must achieve to merit fees and establishes precedent probably applicable to more than just cases under the "appropriate" standard.

The merits of the case dealt with EPA's "tall stacks" regulations. Under the 1970 version of the Clean Air Act and its accompanying regulations, it was unclear whether polluters could meet air quality standards only by reducing the amount of pollution emitted or whether they could also meet the standards by diluting their pollution, dispersing it over a wider area. For many, dispersion was the less expensive route, since it could be achieved simply by building taller smokestacks. The 1977 amendments to the Air Act expressly rejected dispersion as a means of compliance. They forbade EPA from giving a polluter air quality credit for the extra dispersion resulting from a stack being any higher than good engineering practice (GEP) would dictate to avoid plume downwash, which happens when the concentrated emissions from the plume are blown directly back to ground level by local wind currents. In Sierra Club v. EPA, plaintiffs challenged EPA's regulations implementing the stack limitations and defining GEP. In a lengthy ruling the District of Columbia Circuit affirmed four challenged parts of the regulations, reversed two as beyond the agency's statutory authority, and remanded six for correction of substantive and procedural errors.⁴¹ The plaintiffs then sought fees for their work.

To decide if fees were warranted, the court first had to evaluate the state of the law governing "appropriate" awards. It began by acknowledging the Supreme Court's ruling in Ruckelshaus v. Sierra Club: to merit fees, a party must have had some success in the merits of its case.⁴² It also noted that one tenet of its early cases had survived Supreme Court scrutiny: to merit fees, a party must also have furthered the goals of or aided in the implementation [15 ELR 10351] of the underlying act.⁴³ Also, it noted that Ruckelshaus suggests that under the "appropriate" standard a plaintiff need not be totally successful to merit fees. A modicum of success will do.⁴⁴

However, a modicum ofsuccess on one claim in a case will not justify fees for all work done. The Supreme Court so ruled in Hensley v. Eckerhart,⁴⁵ a suit for fees under the "prevailing party" standard of the civil rights laws,⁴⁶ and the circuit court reasoned that the principle applied equally under the "appropriate" standard. Under Hensley, a court may not award fees for time spent on unsuccessful claims that were unrelated to the successful ones. Further, even if the unsuccessful claims are related to the successful ones, a court should not award full fees if the plaintiff has not achieved its full objectives in the case.⁴⁷

The Supreme Court suggested a rather narrow construction of "unrelated." It spoke of "distinctly different claims for relief that are based on different facts and legal theories."⁴⁸ It suggested that "cases involving such unrelated claims are unlikely to arise with great frequency"⁴⁹ and observed that when "the plaintiff's claims for relief . . . involve a common core of facts or [are] based on related legal theories" then "[m]uch of counsel's time will be devoted generally to the litigation as a whole making it difficult to divide the hours on a claim-by-claim basis. Such a lawsuit cannot be viewed a series of discrete claims."⁵⁰ In such cases the Court advised the lower courts to "focus on the significance of the overall relief obtained . . . in relation to the hours reasonably expended on the litigation."⁵¹

On the surface, the tall stacks case seemed to involve related claims. All the petitioners' points dealt with one set of rules promulgated in a single rulemaking to implement a single section of the Clean Air Act dealing with the narrow issue of credit for dispersion.⁵² Petitioners brought all their challenges pursuant to the Air Act's judicial review provision.⁵³ However, the circuit court construed "unrelated" somewhat more broadly than the Supreme Court did and treated challenges to different aspects of the regulations as "legally distinct."⁵⁴ Thus, even though one of the petitioners' attorneys claimed that over 70 percent of his time was spent on general work and less than 30 percent could be attributed to specific issues,⁵⁵ the court reviewed each particular substantive concern raised in the case as distinct and unrelated to the others.

The rule that the court used to distinguish related from unrelated issues was never clearly explained, but the court seemed to simply accept the distinctions reflected in the subheadings of the merits panel's opinion. For example, petitioners had raised three claims concerning allowing increases in stack height because of the presence of obstacles that could cause the plume to descend to ground level. One challenged EPA's definition of "nearby" as applied in a formula estimating the effects of downwash from nearby upwind obstacles. A second challenged EPA's decision to allow polluters to prove by demonstration that non-nearby obstacles could also justify taller stacks. A third challenged EPA's decision to allow credit for stacks raised to avoid plume impaction on downwind hills or mountains.⁵⁶ The merits panel gtrouped the first two challenges together under one heading, though it discussed each independently, and treated the third later in the opinion.⁵⁷ For all three issues, the merits panel relied on the same piece of legislative history.⁵⁸ The fees panel unquestioningly followed the merit panel's division, without considering the relations among the law and facts underlying each issue.⁵⁹

Besides establishing that fees should not be awarded for unsuccessful unrelated claims, the District of Columbia Circuit also suggested what constituted success. It noted that the "appropriate" standard was more liberal than the "prevailing party" standard and that a "modicum of success" was sufficient.⁶⁰ On the other hand, the success must be more than purely procedural. On one issue in the case, where the merits panel had remanded an aspect of the tall stacks rule because EPA had failed to address some comments petitioners had made, the court held the relief was purely procedural and declined to award fees.⁶¹ On another issue, where the merits panel had remanded a rule that was potentially lawful but had been put forward with unlawful justifications, the court awarded fees, finding that petitioners had achieved some small substantive success.⁶² Thus, a ruling in the plaintiffs' favor based on the substance [15 ELR 10352] of plaintiffs' claim seems to be prerequisite to an award.

Once it determined the issues for which the petitioners deserved fees, the court proceeded to calculate what fee was proper. The court first held that the total number of hours petitioners claimed was reasonable.⁶³ Although the government complained that petitioners had claimed twice as many hours as the government had spent on the case, the court noted that the petitioners had the burden of reviewing the entire body of regulations to decide which points to challenge. Also, the court said, the complexity of the regulations "seems likely . . . to make even more disproportionate the petitioners' burden."⁶⁴ Further, the court approved of the petitioners' deducting 40 hours in an exercise of billing judgment and rejected the government's suggestion that petitioners had allocated tasks without due regard for the experience level of their attorneys.

The court then turned to the problem of reducing the chargeable hours to account for time spent on unreimbursable issues. It noted that the records of the attorney who had done the most work on the case had about a third of his hours attributed to specific issues and of these roughly 30 percent were devoted to issues for which petitioners did not deserve fees. The court therefore reduced all hours claimed for all attorneys by 30 percent.⁶⁵

Next, the court generally approved the hourly rates claimed by counsel.⁶⁶ Although they were public interest lawyers, the court followed the now-standard practice of allowing them to claim private attorney market rates for their services.⁶⁷ The court declined to increase this "lodestar" amount by a multiplier to compensate for the risk of losing the case, reasoning that to do so is inconsistent with the notion that only success of some sort justifies fee shifting.⁶⁸ The court also declined to raise the lodestar to compensate for the risk of delayed payment, noting that allowing petitioners to claim hourly rates prevailing at the time of the fee petition rather than the rates prevailing when they actually did the work was sufficient compensation.⁶⁹

The court denied petitioners fees against private intervenors who had petitioned the Supreme Court to review the opinion on the merits. It noted that the Supreme Court had urged "special care" in awarding fees against private parties under the Clean Air Act.⁷⁰ The circuit court concluded that it would be inappropriate to award fees against a private intervenor that advanced a reasonable position.⁷¹ Since petitioners had conceded that the intervenors had a better than average chance of securing review and since the Supreme Court had delayed acting on the petition for certiorari until it had decided a similar case, the circuit court judged that the intervenor's position was reasonable.

The court did allow fees for time spent on the fee petition. However it awarded the outside attorney who worked on the petition only what he normally charged nonprofit groups, not his much higher commercial rate. The court apparently reasoned that the rate the attorney charged the group must be the prevailing market rate for the services he offered.⁷² The court did not stop to examine whether the same reasons that justify paying in-house public interest lawyers commercial rates might also justify paying outside counsel commercial rates.⁷³ Finally, the court awarded uncontested photocopying, postage, and telephone expenses but denied fees for a technical consultant who advised petitioners but did not appear as a witness in the case.⁷⁴

The Lessons of the Case

Serra Club v. EPA was a loosely reasoned case. The court stretched the "unrelated issue" prong of the Supreme Court's rule in Hensley far beyond what the high court seemed to intend, and gave little guidance on just what rule it was applying. It could have arrived at much the same fee award, with more clarity, by applying the "level of success" prong, treating the issues as related but reducing the number of hours to reasonably reflect the success achieved.

Also, the court failed to explain why it deducted 30 percent of the time spent on general research from the fee award. This time could well have been necessary even if the unsuccessful issues were never pressed. Indeed, without general research, it is impossible to decide which issues are too frivolous to pursue and which are real, and the court expressly noted that such efforts to analyze the overall case are compensable.⁷⁵

Nonetheless, the case suggests some guidelines for practitioners. Attorneys hoping to get fees should keep records of time spent on each issue in the case. If the Supreme Court's narrower construction of unrelated issues is followed in other circuits, such records could help prove relatedness if they show that much of the time was spent on general issues. In other cases they will help ensure that the fees are awarded fairly. And courts may well come to penalize attorneys who do not keep issue-specific records, much as they are likely to penalize those who have failed to keep contemporaneous records.⁷⁶

This advice probably holds true for attorneys seeking fees under EAJA as well as under the "appropriate" standard, since EAJA uses the "prevailing party" standard of Hensley upon which Serra Club v. EPA is based.

Plaintiffs might also think about how to frame issues so that weaker points are somehow lumped with stronger points. If such lumping can be sold to the court during [15 ELR 10353] the argument on the merits without weakening the case, it may pay dividends later.

On the Horizon

The Supreme Court has recently agreed to review the fee award in Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, a Clean Air Act citizen suit,⁷⁷ There the court awarded fees for work petitioners performed to protect and implement a consent decree. This included work to end Pennsylvania's delay in promulgating regulations to implement the decree, preparation of comments on those regulations, negotiations over proiposed modifications to the decree, opposition to motions of interventioin made by Pennsylvania legislators, and filing of an amicus brief in related litigation before the state supreme court. The Third Circuit not only upheld the award for work on these activities, it upheld fees for petitioners' in-house counsel, and, by a two-to-one vote, upheld the use of lodestar multipliers of two and four for parts of the case involving exceptional legal work and a distinct risk of failure.

The aspect of the case that most probably caught the Supreme Court's attention was the multiplier issue. In Blum v. Stenson,⁷⁸ a recent civil rights case, the Court held that multipliers should only be used in exceptional cases and disallowed a bonus of 50 percent. Specifically, the Court held that factors like the novelty or the complexity of the case or the quality of representation should not justify using multipliers; instead, these factors should ordinarily be reflected in the number of hours claimed and the hourly rate. The Third Circuit distinguished Blum, holding Delaware Valley to be one of the exceptional cases where outstanding representation and excellent result can justify use of multipliers.⁷⁹ It noted that unlike in Blum, the plaintiffs in Delaware Valley had adequately documented the justifications for using a multiplier and the district court had made findings to support its award. The circuit also held that the "contingent nature of plaintiffs' success"⁸⁰ could justify use of a multiplier. The Blum majority expressly left open the question of whether risk of failure could justify a multiplier, but Justices Brennan and Marshall, concurring, said it could.⁸¹

The Supreme Court may also address what the Third Circuit considered the most important issue in the case: the availability of fees for plaintiffs' in-house counsel when outside counsel are also involved in the case.⁸² Pennsylvania argued that since the attorney applying for fees was executive director of the plaintiff association, such an award would violate the prohibition against awards to pro se plaintiffs. The Third Circuit reasoned that the in-house counsel in this case played the role of an outside counsel, signing pleadings, drafting briefs, and appearing before the court. Also, the court suggested that to deny fees would discourage public interest litigation, in conflict with the goals of the Clean Air Act.

Finally, the Court may also wish to address whether fees are available for some of the activities not directly connected with Pennsylvania's actions in court. The Third Circuit awarded fees for work on comments to the regulations implementing the decree, reasoning that the work ensured that the regulations were consistent with the decree.⁸³ The court awarded fees for opposition to intervention by state legislators, reasoning that the legislators were not independent from the state.⁸⁴ And the court awarded fees for participation in a state supreme court case, reasoning that the outcome of the case could have affected the implementation of the plan.⁸⁵

Conclusion

Attorneys fees awards, governed by reasonable standards, can foster litigation in the public interest. Congress has recognized this repeatedly in environmental statutes. The trend in some courts, as exemplified by Ruckelshaus, Hensley, and Sierra Club v. EPA, seems to be to restrict fee awards, arguably more out of concern about traditions of American jurisprudence than about the public interest.⁸⁶ The trend from Congress, at least as exemplified by EAJA, is to broaden the avenues for fee shifting and reaffirm the importance of these provisions.

1. 5 U.S.C. § 504 & 28 U.S.C. § 2412, ELR STAT. 41006:1.

2. See, e.g., Toxic Substances Control Act § 19(d), 15 U.S.C. § 2618(d), ELR STAT. 41347; Endangered Species Act § 11(g)(4), 16 U.S.C. § 1530(g)(4), ELR STAT. 41832:6; Surface Mining Control and Reclamation Act § 520(d), 30 U.S.C. § 1270(d), ELR STAT. 42421; Federal Water Pollution Control Act § 505(d), 33 U.S.C. § 1365(d), ELR STAT. 42147; Marine Protection, Research, and Sanctuaries Act § 155(g)(4), 33 U.S.C. § 1415(g)(4), ELR STAT. 41823; Deepwater Port Act § 16(d), 33 U.S.C. § 1515(d), ELR STAT. 41709; Safe Drinking Water Act § 1449(d), 42 U.S.C. § 300j-8(d), ELR STAT. 41115; Noise Control Act § 12(d), 42 U.S.C. § 4911(d), ELR STAT. 41505; Resource Conservation and Recovery Act § 7002(e), 42 U.S.C. § 6972(e), ELR STAT. 42035; Clean Air Act §§ 304(d) & 307(f), 42 U.S.C. §§ 7604(d) & 7607(f), ELR STAT. 42256, 42259; Outer Continental Shelf Lands Act § 23(a)(5), 43 U.S.C. § 1349(a)(5), ELR STAT. 42466.

3. See, e.g., the House report discussion of the fees provision in the 1977 amendments to the Clean Air Act: "[T]he purposes of the authority to award fees are not only to discourage frivolous litigation, but also to encourage litigation which will assure proper implementation and administration of the act or otherwise serve the public interest." H.R. REP. 294, 95th Cong., 1st Sess. 337, reprinted in 1977 U.S. CODE CONG. & AD. NEWS 1077, 1416.

4. Pub. L. No. 96-481, Title II, 94 Stat. 2321, 2325 (1980).

5. H.R. REP. No. 1418, 96th Cong., 2d Sess. 5-6, reprinted in 1980 U.S. CODE CONG. & AD. NEWS 4984.

6. Pub. L. No. 96-481, sec. 204(a), 94 Stat. at 2328, codified at 28 U.S.C. § 2412(d)(1)(a).

7. "The deterrent effect created by this inability to recover fees against the Government is particularly disturbing in light of the rapid growth in Government regulations in recent years." H.R. REP. NO. 1418, 96th Cong., 2d Sess. 9-10, reprinted in 1980 U.S. CODE CONG. & AD. NEWS 4984, 4988.

8. Id. at 20, reprint at 4999.

9. Id.

10. Id. at 13, reprint at 4992.

11. Pub. L. No. 96-481, sec. 204(c), 94 Stat. at 2329.

12. H.R. REP. NO. 120, 99th Cong. 1st Sess. 8-9 (1985).

13. In 1980 the Congressional Budget Office had estimated that in 1984 courts would make 4,000 awards averaging $22,500 each. H.R. REP. NO. 1418, 96th Cong., 2d Sess. 21-23, reprinted in 1980 U.S. CODE CONG. & AD. NEWS 4953, 5000-02. In fact, courts made 157 awards averaging under $8,100 each. H.R. REP. NO. 120, 99th Cong. 1st Sess. 8-9 (1985).

14. See 130 CONG. REC. H12171, S14387 (daily ed. Oct. 11, 1984).

15. See H.R. 5478 Memorandum of Disapproval (Nov. 8, 1984), reprinted in 130 CONG. REC. H12292-93 (daily ed. Nov. 14, 1984).

16. Pub. L. No. 99-80, 99 Stat. 183 (1985), amending 5 U.S.C. § 504 and 28 U.S.C. § 2412. The amended version of the two sections should now be in your ELR Statutes binder, ELR STAT. 41006:1. The provisions concerning revival and effective dates, secs. 6 & 7, 99 Stat. at 186, will becodified as notes in U.S.C.

17. 5 U.S.C. § 504(a)(1), 28 U.S.C. § 2412(d)(1)(a), ELR STAT. 41007.

18. 5 U.S.C. § 504(b)(1)(E), 28 U.S.C. § 2412(d)(2)(D), ELR STAT. 41007. Thus, the Act will change the position taken in at least six circuits. See Ashburn v. United States, 740 F.2d 843 (11th Cir. 1984); Boudin v. Thomas, 732 F.2d 1107 (2d Cir. 1984); United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481 (10th Cir.), cert. denied, 105 S. Ct. 105 (1984); Spencer v. National Labor Relations Board, 712 F.2d 539 (D.C. Cir. 1983), cert. denied, 104 S. Ct. 1908 (1984); Tyler Business Services, Inc. v. National Labor Relations Board, 695 F.2d 73 (4th Cir. 1982); Broad Avenue Laundry & Tailoring v. United States, 693 F.2d 1387 (Fed. Cir. 1982).

19. 5 U.S.C. § 504(b)(1)(E), 2, U.S.C. § 2412(d)(2)(D), ELR STAT. 41006:1.

20. 5 U.S.C. § 504(a)(1), 28 U.S.C. § 2412(d)(1)(B), ELR STAT. 41006:1.

21. H.R. REP. NO. 120, 99th Cong., 1st Sess. 9-10 (1985). Some parts of the floor debate on the bill seem to contradict this part of the committee report. See 131 CONG. REC. H4763 (daily ed. June 24, 1985) (remarks of Reps. Kindness, Moorhead, and Kastenmeier); 131 CONG. REC. S9992-93 (daily ed. July 24, 1985) (colloquy between Sens. Domenici and Grassley; remarks of Sen. Thurmond). The Fifth Circuit recently ruled that the legislative history on the point is ambiguous and has decided to continue to apply a reasonableness standard. Russell v. National Mediation Board, No. 84-1345 (5th Cir. Oct. 23, 1985). According to the First Circuit, all circuits except the D.C. Circuit applied the reasonableness standard under the old Act. See United States v. Yoffe, No. 85-1229, slip op. at 4-5 (1st Cir. Oct. 25, 1985). For the D.C. Circuit position, see Grace v. Burger, 763 F.2d 457 (D.C. Cir. 1985); Cinciarelli v. Reagan, 729 F.2d 801 (D.C. Cir. 1984).

Note that since the ruling on fees is often closely dependent on the ruling on the merits, if the United States appeals an agency ruling on the merits, the fee determination is automatically stayed. 5 U.S.C. § 504(a)(2), ELR STAT. 41006:1. Because in court cases, a fee petition would ordinarily not be filed until after the time for appeal has run, the act has no comparable stay provision for appeals of court decisions.

22. 5 U.S.C. § 504(b)(1)(E), 2412(d)(2)(D), ELR STAT. 41006:1.

23. Pub. L. No. 96-481, sec. 203(a)(1), 94 Stat. at 2326, amending 5 U.S.C. § 504(b)(1)(B); sec. 204(a), 94 Stat. at 2329, amending 28 U.S.C. § 2412(d)(2)(B). The Second Circuit has recently ruled that where only some of the prevailing parties are eligible for fees, the fee award should be reduced based on the ratio of eligible parties to total prevailing parties. Sierra Club v. United States Army Corps of Engineers, Nos. 84-6287, -6289, -6293 (2d Cir. Oct. 28, 1985), rev'g in part 590 F. Supp. 1509, 15 ELR 20070 (S.D.N.Y. 1984).

24. 5 U.S.C. § 504(b)(1)(B), 2412(d)(2)(B), ELR STAT. 41006:1.

25. 5 U.S.C. § 504(b)(1)(A), 28 U.S.C. § 2412(d)(2)(A), ELR STAT. 41006:1.

26. H.R. REP. NO. 120, 99th Cong., 1st Sess. 17 (1985).

27. Compare Tulalip Tribes of Washington v. Federal Energy Regulatory Commission, 749 F.2d 1367 (9th Cir. 1984), cert. denied, 54 U.S.L.W. 3259 (U.S. Oct. 15, 1985) (No. 84-1805), with Hirschey v. Federal Energy Regulatory Commission, 760 F.2d 305 (D.C. Cir. 1985); United States v. 341.45 Acres of Land, 751 F.2d 924 (8th Cir. 1984); Washington Urban League v. Federal Energy Regulatory Commission, 743 F.2d 166 (3d Cir. 1984); United States v. 329.73 Acres, 704 F.2d 800 (5th Cir. 1983).

28. 28 U.S.C. § 2412(d)(2)(G), ELR STAT. 41007.

29. 755 F.2d 717, 15 ELR 20347 (9th Cir. 1985).

30. H.R. REP. NO. 120, 99th Cong., 1st Sess. 18 n.26 (1985).

The Third Circuit has recently ruled that defects in the fee request not corrected within the 30-day period do not rob the court of jurisdiction to consider the request. Dunn v. United States, No. 85-3064 (3d Cir. Oct. 21, 1985). The court also ruled that when a case is settled by consent order and no party moves to intervene after the order is entered, the time for filing runs from the date of entry of the order.

31. For examples of administrative adjudications in an environmental context, see the digests of EPA records of decision in ELR's Administrative Materials collection.

32. 5 U.S.C. § 504(a)(3), ELR STAT. 41006:1.

33. 5 U.S.C. § 504(c)(2), ELR STAT. 41006:1. However, if the U.S. appeals the merits, the fee petition is stayed and will live or die with the appeal. 5 U.S.C. § 504(a)(2), ELR STAT. 41006:1.

34. 5 U.S.C. § 504(c)(2), ELR STAT. 41006:1.

35. See supra note 2.

36. See the discussion of the standard in Carson-Truckee Water Conservancy District v. Secretary of the Interior, 748 F.2d 523, 15 ELR 20026 (9th Cir. 1984), a case where the court denied fees to a party who had not aided in the implementation of the act at issue.

37. However, courts are hesitant to award fees against nongovernmental adversaries; see, e.g., Delaware Valley Citizens' Council for Clean Air v. Pennsylvania, 762 F.2d 272, 15 ELR 20475 (3d Cir. 1985), cert. granted 54 U.S.L.W. 3223 (U.S. Oct. 7, 1985) (No. 85-5) (granting fees against the state government in a Clean Air Act citizen suit but declining to award fees against private intervenors for work done to oppose a petition for certiorari).

38. Sierra Club v. Gorsuch, 672 F.2d 33, 12 ELR 20213 (D.C. Cir. 1982), rev'd sub nom. Ruckelshaus v. Sierra Club, 463 U.S. 680, 13 ELR 20664 (1983).

39. Ruckelshaus v. Sierra Club, 463 U.S. 680, 13 ELR 20664 (1983). See generally Comment, The Supreme Court Limits Fee Awards in Unsuccessful Environmental Suits, 13 ELR 10244 (1983).

40. 769 F.2d 796, 15 ELR 20869 (D.C. Cir. Aug. 2, 1985).

41. Sierra Club v. EPA, 719 F.2d 436, 13 ELR 21001 (D.C. Cir. 1983), cert. denied, 104 S. Ct. 3571 (1984).

42. Sierra Club v. EPA, 769 F.2d at 799-800, 15 ELR at 20869-70.

43. 769 F.2d at 800, 15 ELR at 20869-70. See Carson-Truckee, supra note 36 for an example of a party that prevailed in an Endangered Species Act case but, because the party was merely an intervenor that echoed the government's position, did not merit fees.

44. 769 F.2d at 800, 15 ELR at 20870.

45. 461 U.S. 424 (1983).

46. 42 U.S.C. § 1988.

47. 461 U.S. at 434, quoted at 769 F.2d at 801, 15 ELR at 20870.

48. 461 U.S. at 434.

49. 461 U.S. at 435.

50. Id.

51. Id.

52. The section was Clean Air Act § 123, 42 U.S.C. § 7423, ELR STAT. 42228. The challenged rules were promulgated at 47 Fed. Reg. 5864 (Feb. 8, 1982).

53. § 307(b), 42 U.S.C. § 7607(b), ELR STAT. 42257.

54. 769 F.2d at 803, 15 ELR at 20871.

55. 769 F.2d at 807-08, 15 ELR at 20874.

56. Impaction occurs when the plume from a stack touches the ground before it has well dispersed.

57. The first two the court discussed under the heading "Definition of 'Nearby,'" 719 F.2d at 443-446, 13 ELR at 21004-06. The third the court discussed under the heading "Inclusion of Plume Impaction," 719 F.2d at 452-56, 13 ELR at 21009-12.

58. Specifically, the discussion of the construction of the term "nearby" in the House report on the 1977 amendments. See 719 F.2d at 443-44, 444-45, 453, 13 ELR at 21004, 21005, 21010.

59. The merits panel's organization of its opinion does reflect factual and legal distinctions among the issues. The court reached separate decisions on the issues raised in each. However, the analysis in each section was based on the court's and the parties' overall analysis of the language, legislative history, and purpose of the entire tall stacks provision. Given the unity of the issues considered, the fees panel's treatment seems arbitrary and out of step with the Supreme Court's directives quoted above in the text accompanying notes 48-51.

60. 769 F.2d at 800, 15 ELR at 20870.

61. 769 F.2d at 805-06, 15 ELR 20873 ("Stack Height in Existence" issue).

62. 769 F.2d at 804-05, 15 ELR at 20872 ("Requiring Demonstrations" issue). The court claimed that the success petitioners achieved on the "Prospective Application of the 1 + 1.5 Rule" issue was barely enough to allow award of fees, 769 F.2d at 806, 15 ELR at 20873; however, it seems the "Requiring Demonstrations" issue was closer. On the 1 + 1.5 issue, petitioners convinced the court that the rule was inconsistent with congressional purposes and judicial doctrine on retroactive application of rules. On the Demonstrations issue the court held that EPA's justifications for its rule were flawed, but the court did not expressly hold that the rule was inconsistent with the statute.

63. 769 F.2d at 807-08, 15 ELR at 20874.

64. 769 F.2d at 807, 15 ELR at 20874.

65. 769 F.2d at 808, 15 ELR at 20874.

66. 769 F.2d at 808-09, 15 ELR at 20874-75.

67. See Blum v. Stetson, 104 S. Ct. 1541 (1984).

68. 769 F.2d at 809, 15 ELR at 20875.

69. 769 F.2d at 809-10, 15 ELR at 20875.

70. 769 F.2d at 810, 15 ELR 20876, quoting Ruckelshaus v. Sierra Club, 463 U.S. at 692 n.12, 13 ELR at 20667.

71. 769 F.2d at 810, 15 ELR at 20876.

72. 769 F.2d at 811-12, 15 ELR at 20876.

73. By effectively penalizing attorneys who lower their rates to work on public interest issues, the court will discourage this laudable practice.

74. 769 F.2d at 812, 15 ELR at 20877.

75. The court seemed to assert this very point when it discussed why it was reasonable for petitioners' attorneys to have spent twice as much time on the case as the government's. See supra text accompanying notes 63-64.

76. See Oregon Environmental Council v. Kunzman, 14 ELR 20762 (D. Or. Aug. 9, 1984). There the parties sought fees under EAJA but did not present contemporaneous time records. The court reduced the fee award by 10 percent as an estimate of possible duplication of effort among attorneys and an additional 25 percent as an estimate of the time spent on claims against nonfederal defendants, which are not compensable under EAJA. See also Hensley, 461 U.S. at 433. ("The party seeking an award should submit evidence supporting the hours worked and rates claimed. Where documentation of hours is inadequate, the district court may reduce the award accordingly.")

77. 762 F.2d 272, 15 ELR 20475 (3d Cir.), cert. granted 54 U.S.L.W. 3223 (U.S. Oct. 7, 1985) (No. 85-5).

78. 104 S. Ct. 1541 (1984).

79. 762 F.2d at 280, 15 ELR at 20480.

80. 762 F.2d at 282, 15 ELR at 20480.

81. 104 S. Ct. at 1550. Note that the D.C. Circuit rejected multipliers for risk in Sierra Club v. EPA, 769 F.2d at 809, 15 ELR at 20875.

82. 762 F.2d at 274, 277-78, 15 ELR at 20476, 20478.

83. 762 F.2d at 276-77, 15 ELR at 20477-78.

84. 762 F.2d at 277, 15 ELR at 20478.

85. Id.

86. See generally Comment, The Supreme Court Limits Fee Awards in Unsuccessful Environmental Suits, 13 ELR 10244 (1983).