WV Highlands Consrv v. Norton

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

WEST VIRGINIA HIGHLANDS 

CONSERVANCY, INCORPORATED;

NATIONAL WILDLIFE FEDERATION,

Plaintiffs-Appellees,

v.  No. 02-2375

GALE A. NORTON, Secretary of the

Interior,

Defendant-Appellant.



Appeal from the United States District Court

for the Southern District of West Virginia, at Charleston.

Mary E. Stanley, Magistrate Judge.

(CA-01-775-2)

Argued: June 5, 2003

Decided: September 3, 2003

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Affirmed in part, vacated in part, and remanded by published opinion.

Judge Michael wrote the opinion, in which Judge Motz and Judge

King joined.

COUNSEL

ARGUED: Katherine W. Hazard, Environment & Natural Resources

Division, UNITED STATES DEPARTMENT OF JUSTICE, Wash-

ington, D.C., for Appellant. Walton Davis Morris, Jr., MORRIS LAW

2 W. VA. HIGHLANDS CONSERVANCY v. NORTON

OFFICE, P.C., Charlottesville, Virginia, for Appellees. ON BRIEF:

Thomas L. Sansonetti, Assistant Attorney General, Todd S. Kim,

Environment & Natural Resources Division, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C.; Rodney Vieira,

Wayne A. Babcock, Office of the Solicitor, DEPARTMENT OF THE

INTERIOR, Washington, D.C., for Appellant. Charles M. Kincaid,

Huntington, West Virginia, for Appellees.

OPINION

MICHAEL, Circuit Judge:

This appeal takes origin in a citizen complaint filed by the West

Virginia Highlands Conservancy, Inc. and the National Wildlife Fed-

eration (collectively, "WVHC") with the Department of the Interior’s

Office of Surface Mining Reclamation and Enforcement (OSM). The

complaint alleged that a mining company was violating provisions of

the Surface Mining Control and Reclamation Act (SMCRA), 30

U.S.C. §§ 1201 et seq. OSM rejected the complaint, and WVHC

appealed to the Interior Board of Land Appeals (the Board). The

Board remanded the case to OSM for the development of an adequate

record and a new agency decision. After the Board denied WVHC

attorney fees for its work in the administrative appeal, WVHC sought

review of the Board’s fee-denial decision in U.S. district court. The

district court granted summary judgment to WVHC, holding that

WVHC had earned fees because it had achieved "at least some degree

of success on the merits" and had "made a substantial contribution to

a full and fair determination of the issues." 43 C.F.R. § 4.1294(b). We

affirm the district court’s award of summary judgment in part, specifi-

cally, to the extent the court concluded that WVHC achieved some

success because the Board-ordered remand advanced SMCRA’s goals

by requiring OSM to fulfill its duty to give proper consideration to

citizen complaints. However, since the Board must decide in the first

instance the factual issue of whether WVHC made a substantial con-

tribution toward achieving the Board-ordered remand, we vacate the

summary judgment in favor of WVHC on this issue. The case will be

remanded to allow the Board to make a finding on the substantial con-

tribution issue.

W. VA. HIGHLANDS CONSERVANCY v. NORTON 3

I.

WVHC began this controversy by filing a citizen complaint, alleg-

ing a SMCRA violation, with OSM’s Charleston, West Virginia,

Field Office. Congress enacted SMCRA to, among other things, "es-

tablish a nationwide program to protect society and the environment

from the adverse effects of surface coal mining operations." 30 U.S.C.

§ 1202(a). SMCRA is designed in part to "assure that appropriate pro-

cedures are provided for the public participation in the development,

revision, and enforcement of regulations, standards, reclamation

plans, or programs established by the Secretary or any State under

[the Act]." Id. § 1202(i). One of the "appropriate procedures" to

assure public participation in enforcing SMCRA standards allows any

adversely affected person to notify OSM of the existence of a

SMCRA violation at any surface mining operation. Id. § 1267(h). The

notification is commonly known as a "citizen complaint." If a citizen

complaint gives OSM reason to believe that a violation is taking

place, the agency first issues a "ten-day notice" to the appropriate

state regulatory authority (the state). Id. § 1271(a)(1); 30 C.F.R.

§ 842.11(b)(1)(ii)(B). This notice gives the state the opportunity to

deal with any violation and to respond to OSM. OSM considers the

state’s response and determines whether the state has taken "appropri-

ate action to cause the violation to be corrected" or has shown good

cause for not taking action. 30 C.F.R. § 842.11(b)(1)(ii)(B)(1). If the

state’s response is inadequate, OSM (through its field office) must

conduct its own inspection. 30 U.S.C. § 1271(a)(1); 30 C.F.R.

§ 842.11(b)(1)(ii)(B)(1). If the OSM field office accepts the state’s

response as appropriate (and thereby declines to conduct a federal

inspection), the citizen complainant may seek "informal review" with

the Director of OSM or his designee. 30 C.F.R. § 842.15(a). The deci-

sion of the Director or his designee may be appealed to the Board. 30

C.F.R. § 842.15(d); 43 C.F.R. § 4.1281.

WVHC’s citizen complaint alleged that Valley Camp Coal Co.

(Valley Camp) owned or controlled Bufflick, Inc., a company holding

the permit for a mine in Kanawha County, West Virginia, that was in

violation of SMCRA’s reclamation requirements. When a mine is in

violation of SMCRA, any entity that owns or controls the mine or that

owns or controls the permit holder for the mine must be blocked from

receiving new mining permits, and its current permits must be

4 W. VA. HIGHLANDS CONSERVANCY v. NORTON

rescinded. 30 U.S.C. § 1260(c); 33 C.F.R. § 773.21. The complaint

sought to have Valley Camp’s permits rescinded because of the viola-

tions at Bufflick’s mine. The complaint also alleged that Valley Camp

violated SMCRA by failing to disclose its ownership or control of

Bufflick in its own permit applications. See id. § 1257(b)(4).

Upon receiving WVHC’s complaint, OSM’s Charleston Field

Office issued a ten-day notice to the state (the West Virginia Depart-

ment of Environmental Protection). The state responded to the notice

by saying that it found no ownership or control link between Valley

Camp and Bufflick. The OSM field office considered the state’s

response and "found it to be appropriate." WVHC sought informal

review of the field office decision with the Director’s designee, an

Assistant Director, who affirmed the field office. The Assistant Direc-

tor based his decision on what he called "the 2-page lease agreement

between Valley Camp and Bufflick." WVHC filed an appeal with the

Board, and OSM responded by moving for a remand. The agency

sought a remand because it discovered that the document the Assis-

tant Director had treated as a lease was merely a property description

of premises covered by a sublease between Valley Camp and Buff-

lick. The actual sublease was not part of the record reviewed by the

agency. OSM admitted that the Assistant Director’s decision was "in-

adequately supported" and was "open to question with respect to its

reliability." A remand, OSM said, would allow it "to develop an ade-

quate record" and "make a fully informed decision" on the issue of

any ownership or control relationship between Valley Camp and

Bufflick. The Board granted the motion and vacated the Assistant

Director’s decision that had affirmed the field office decision accept-

ing the state’s assessment. This, the Board said, "put[ ] the matter

back to the beginning of the informal review process."

On remand OSM referred the matter to its Applicant/Violator Sys-

tem Office (AVSO), which maintains the agency’s database of com-

panies and the connections between them. AVSO found no ownership

or control connection between Valley Camp and Bufflick. WVHC

appealed this finding, but withdrew the appeal when Valley Camp got

out of the coal mining business. WVHC then petitioned the Board

under 30 U.S.C. § 1275(e) for an award of attorney fees from OSM

to cover the organization’s first appeal to the Board, which resulted

in the remand to OSM. The Board denied the fee petition on the

W. VA. HIGHLANDS CONSERVANCY v. NORTON 5

ground that WVHC "failed to achieve any degree of success on the

merits of [its citizen] complaint." Next, WVHC filed an action against

Gale A. Norton, Secretary of the Interior, in the U.S. District Court

for the Southern District of West Virginia, seeking judicial review of

the Board’s decision to deny attorney fees. (With the consent of the

parties, the case was assigned to a magistrate judge for disposition.

See 28 U.S.C. § 636(c).) The Secretary and WVHC filed cross-

motions for summary judgment. The district court granted summary

judgment to WVHC, holding that WVHC is entitled to an administra-

tive award of costs and expenses, including attorney fees. The court

remanded the matter to the Board for a determination of the amount

to be awarded. The Secretary appeals.

II.

We first consider whether we have subject matter jurisdiction.

Mitchell v. Maurer, 293 U.S. 237, 244 (1934); Betty B Coal Co. v.

Dir., Office of Workers’ Comp. Programs, 194 F.3d 491, 495 (4th Cir.

1999). The Secretary appeals from the district court’s order of sum-

mary judgment (1) holding that WVHC should get attorney fees from

OSM and (2) remanding the case to the Board for a determination of

the amount. We have jurisdiction over appeals from final decisions of

the district courts. 28 U.S.C. § 1291. "A district court’s order remand-

ing a case to an administrative agency is usually not a final, appeal-

able decision under 28 U.S.C. § 1291." Hanauer v. Reich, 82 F.3d

1304, 1306 (4th Cir. 1996). Nevertheless, "if a district court order

remanding a case to an administrative agency will be effectively unre-

viewable after a resolution of the merits, the order is a final decision."

Id. at 1306-07. The district court’s summary judgment order

remanded the case for the Board to make an award of fees in the

appropriate amount. The Board awards and sets the fees because the

Secretary has delegated to the Board "the authority to exercise the

final decisionmaking power of the Secretary under the act pertaining

to . . . [p]etitions for [fee] awards." 43 C.F.R. § 4.1101(a)(7) (2002).

Section 1276(a)(1) of SMCRA allows persons aggrieved by actions

of the Secretary to petition for judicial review. 30 U.S.C.

§ 1276(a)(1). A Board decision awarding fees is the exercise, by dele-

gation, of the Secretary’s power, and the Secretary cannot be

aggrieved by what is, in effect, her own decision. In this case, then,

the Secretary would not be able to petition for judicial review of any

6 W. VA. HIGHLANDS CONSERVANCY v. NORTON

Board decision on remand awarding attorney fees pursuant to the dis-

trict court’s summary judgment order. Thus, if we do not review the

district court’s summary judgment order prior to a remand to the

Board, the summary judgment order will become "effectively unre-

viewable" as far as the Secretary is concerned. See Hanauer, 82 F.3d

at 1306-07. This means that the order operates as a final decision, and

we have jurisdiction to review it.

III.

A.

The Secretary argues on appeal that the district court’s order

awarding summary judgment to WVHC should be reversed because

the Board properly denied attorney fees to WVHC on the ground that

the organization failed to achieve any success on the merits of its citi-

zen complaint. We begin our consideration of the Secretary’s appeal

with a brief review of the law on attorney fees. The American Rule

is that "the prevailing litigant is ordinarily not entitled to collect a rea-

sonable attorneys’ fee from the loser." Alyeska Pipeline Serv. Co. v.

Wilderness Soc’y, 421 U.S. 240, 247 (1975) (emphasis added). There

are exceptions to the American Rule, most notably in certain fee-

shifting statutes that require or permit a court or agency to order one

party to pay the reasonable attorney fees of another. See Loggerhead

Turtle v. County Council, 307 F.3d 1318, 1322-23 (11th Cir. 2002).

Most fee-shifting statues allow the award of fees to the prevailing

party. See id. at 1322 n.4 (listing "prevailing party" statutes). Some

statutes, however, allow the award of fees to any party whenever the

court or agency determines an award to be appropriate. See id. at

1322-23 n.5 (listing "whenever appropriate" statutes). The discretion

afforded courts and agencies under the "whenever appropriate" stat-

utes is not unbounded, however. In Ruckelshaus v. Sierra Club, 463

U.S. 680 (1983), the Supreme Court held that "absent some degree of

success on the merits by the claimant, it is not ‘appropriate’ for a fed-

eral court to award attorney’s fees." Id. at 694. This principle applies

to all "whenever appropriate" fee-shifting statutes. Id. at 682 n.1.

SMCRA’s fee-shifting provision, 30 U.S.C. § 1275(e), which is

before us today, fits in the "whenever appropriate" category. Section

1275(e) provides that reasonable fees incurred by a party in adminis-

W. VA. HIGHLANDS CONSERVANCY v. NORTON 7

trative proceedings under SMCRA "may be assessed against either

party as . . . the Secretary . . . deems proper." The Secretary has dele-

gated her fee assessment authority to the Board. See 43 C.F.R.

§ 4.1101(a)(7). The Secretary has also promulgated a regulation, 43

C.F.R. § 4.1294(b), to insure that § 1275(e) is implemented in a way

that is consistent with Ruckelshaus. The regulation authorizes the

Board to hold OSM liable for fees to a party, other than a permittee,

"who prevails in whole or in part, achieving at least some degree of

success on the merits, upon a finding that such person made a sub-

stantial contribution to a full and fair determination of the issues." Id.

§ 4.1294(b).

The fee petitioner must thus satisfy two requirements under the

regulation: first, what is called the "eligibility requirement" (achiev-

ing at least some degree of success on the merits); and, second, what

is called the "entitlement requirement" (making a substantial contribu-

tion to the determination of the issues). See W. Va. Highlands Conser-

vancy, 152 I.B.L.A. 66, 74 (2000). The Board denied WVHC’s fee

petition on the sole ground that the organization did not meet the

threshold eligibility requirement. According to the Board, WVHC did

not achieve any degree of success on the merits when the Board

remanded the matter to OSM so that the informal review of the field

office decision could begin anew. The district court reversed, holding

that WVHC achieved some success on the merits because OSM "ad-

mitt[ed] it failed to conduct a proper inquiry." The district court went

on to decide the entitlement question, which the Board did not reach.

The court found that WVHC made a substantial contribution to the

determination of the issues because if WVHC had not appealed

OSM’s informal review decision to the Board, "it is unlikely that

OSM would have discovered its error in failing to review the proper

documents." We consider the eligibility and entitlement issues in turn.

B.

The Secretary first argues that the district court should have

deferred to the Board’s decision that WVHC was ineligible for an

award of attorney fees. The Board’s conclusion that WVHC did not

achieve some degree of success on the merits, the Secretary says, rep-

resents the Board’s interpretation of its own regulation and is there-

fore due our deference under the line of cases starting with Bowles v.

8 W. VA. HIGHLANDS CONSERVANCY v. NORTON

Seminole Rock & Sand Co., 325 U.S. 410 (1945). See also Kentucki-

ans for the Commonwealth v. Rivenburgh, 317 F.3d 425, 439 (4th Cir.

2003). Under Seminole Rock deference an agency’s interpretation of

its own regulation is binding on a court "unless [the interpretation] is

plainly erroneous or inconsistent with the regulation." Seminole Rock,

325 U.S. at 414. See also Thomas Jefferson Univ. v. Shalala, 512 U.S.

504, 512 (1994). However, "[w]hen the administrative interpretation

is not based on expertise in the particular field . . . but is based on

general common law principles, great deference is not required." Bur-

gin v. Office of Pers. Mgmt., 120 F.3d 494, 497 (4th Cir. 1997) (quot-

ing Jicarilla Apache Tribe v. Fed. Energy Regulatory Comm’n, 578

F.2d 289, 292-93 (10th Cir. 1978)). This exception to Seminole Rock

deference is invoked to allow de novo review of an agency’s legal

determination. See, e.g., Burgin, 120 F.3d at 497-99 (Office of Per-

sonnel Management’s interpretation of contractual language); Colo.

Pub. Utils. Comm’n v. Harmon, 951 F.2d 1571, 1578-79 (10th Cir.

1991) (Department of Transportation’s determination that its regula-

tion preempts a state law); Grossman v. Bowen, 680 F. Supp. 570,

575 (S.D.N.Y. 1988) (Secretary of Health and Human Services’

application of common law principles to determine when a person is

presumed dead). The question of whether the result achieved by a

party in a case warrants eligibility for an award of attorney fees is also

a legal determination that a court is as competent to decide as the

Board. See Smyth v. Rivero, 282 F.3d 268, 274 (4th Cir. 2002) ("The

designation of a party as a prevailing party . . . is a legal determina-

tion which we review de novo."). We will therefore review de novo

the Board’s decision that WVHC is ineligible for fees on the ground

that it did not achieve any degree of success on the merits.

The Secretary argues that WVHC achieved no success on the mer-

its because on remand OSM found that there was no ownership or

control link between Valley Camp and Bufflick. The Secretary’s

argument runs up against National Wildlife Federation v. Hanson,

859 F.2d 313 (4th Cir. 1988). In Hanson the plaintiffs challenged an

Army Corps of Engineers determination that a tract of land was not

wetlands under the Clean Water Act. The district court found that the

Corps had not adequately evaluated the tract before determining that

it was not wetlands; the court therefore remanded the case, directing

the Corps to make a properly informed wetlands determination. Id. at

315; see also Nat’l Wildlife Fed’n v. Hanson, 623 F. Supp. 1539,

W. VA. HIGHLANDS CONSERVANCY v. NORTON 9

1546-48 (E.D.N.C. 1985). The plaintiffs in Hanson petitioned the dis-

trict court for attorney fees under the Clean Water Act’s "whenever

appropriate" fee provision, 33 U.S.C. § 1365(d), for their successful

efforts in obtaining the remand order. The Corps objected to the fee

petition, arguing that the plaintiffs could not prevail until the Corps

issued a determination that the tract was wetlands. The district court

nevertheless awarded the plaintiffs fees before the Corps made its

new determination. Hanson, 859 F.2d at 316. On appeal we held that

the Corps’s ultimate determination — either wetlands or no wetlands

— was not relevant to whether the plaintiffs had achieved some

degree of success on the merits. We read Ruckelshaus to allow fee

awards "to partially prevailing parties where the action served to pro-

mote the purposes of the Act," id. at 317, and we concluded that the

remand obtained by the plaintiffs "serve[d] a key purpose of the citi-

zen suit provisions which is to ensure that the agencies fulfill their

duties under the [Clean Water Act] responsibly," id. The plaintiffs

had therefore achieved sufficient success on the merits to be eligible

for an award of fees.

A primary purpose of SMCRA’s citizen complaint provision is

likewise to ensure that OSM fulfills its duties under the Act. See

Haydo v. Amerikohl Mining, Inc., 830 F.2d 494, 497 (3rd Cir. 1987)

(stating that "[t]he principal purpose of [SMCRA’s] citizen suit provi-

sion" is to provide a means of insuring that OSM carries out its

responsibilities under the Act); H.R. Rep. No. 95-218, at 88-89 (1977)

("[P]roviding citizens access to administrative appellate procedures

and the courts is a practical and legitimate method of assuring the reg-

ulatory authority’s compliance with the requirements of the act."); S.

Rep. No. 95-128, at 59 (1977) (same). One of OSM’s specific duties

under SMCRA is to deny a permit to, or revoke the permit of, an

entity that owns or controls a surface coal mining operation that is in

violation of SMCRA or other environmental laws. 30 U.S.C.

§§ 1211(c)(1), 1260(c); 30 C.F.R. § 773.21.

The purpose of WVHC’s citizen complaint was to ensure that OSM

performed its statutory duty to block permits to those who own or

control surface mines that are in violation of SMCRA or other envi-

ronmental laws. OSM fails in this statutory duty when it does not

make adequate inquiry into complaints that the ownership and control

provisions are being violated. Here, once WVHC’s administrative

10 W. VA. HIGHLANDS CONSERVANCY v. NORTON

case was on appeal to the Board, OSM admitted that it had not done

its job. Specifically, OSM admitted that the Assistant Director’s deci-

sion on informal review — affirming in effect the rejection of

WVHC’s complaint — "was inadequately supported" and was there-

fore "open to question as to its reliability." The Board itself, after not-

ing that OSM had acknowledged that the Assistant Director’s

decision was based on an inadequate record, concluded that this short-

coming "casts significant doubt on the reliability of [the Assistant

Director’s] informal review decision." The Board-ordered remand

was therefore necessary to make sure that OSM properly fulfilled its

duties under SMCRA. Cf. Hanrahan v. Hampton, 446 U.S. 754

(1980) (per curiam) (holding that remand to district court does not

establish eligibility for fees under "prevailing party" statute when the

statute is not aimed at ensuring an agency’s procedural diligence); Bly

v. McLeod, 605 F.2d 134, 137 (4th Cir. 1979) (same). Specifically,

the Board’s remand requiring OSM to reconsider the question of own-

ership or control after developing a complete record advanced the

statutory goal of ensuring that the agency acted responsibly in fulfill-

ing its duties, regardless of what its ultimate determination turned out

to be. See Hanson, 859 F.2d at 317. An administrative remand, like

the one ordered by the Board here, that advances an important statu-

tory goal is sufficient success on the merits to establish eligibility for

an award of fees under Ruckelshaus and Hanson, even when that goal

is simply to make sure that an agency fulfills its statutory duties.

The Secretary, citing Hanson, also argues that WVHC did not

achieve success on the merits because it did not obtain all of the relief

that the Board had authority to render. See id., 859 F.2d at 317. The

Board did have the authority to order OSM to reject the state agency’s

resolution of the matter and to order OSM to conduct a full-blown

investigation. The Board’s remand order that required OSM to restart

the informal review process thus did not constitute all of the relief that

WVHC could have received. But the remand order amounted to par-

tial success — success that required OSM to do a proper job in carry-

ing out one of its duties under SMCRA. This degree of success is

sufficient to establish eligibility for an award of fees under SMCRA’s

"whenever appropriate" fee-shifting provision. See Ruckelshaus, 463

U.S. at 688.

In sum, the district court properly granted summary judgment to

WVHC on the question of its eligibility for a fee award.

W. VA. HIGHLANDS CONSERVANCY v. NORTON 11

C.

A fee petitioner under SMCRA must also establish its entitlement

to a fee award. Here, the regulation requires "a finding that [the peti-

tioner] made a substantial contribution to a full and fair determination

of the issues." 43 C.F.R. § 4.1294(b). The Board has held, in another

case involving WVHC, that the key to a finding of substantial contri-

bution is "the existence of a causal nexus between petitioners’ actions

in prosecuting the Board appeal and the relief obtained." W. Va. High-

lands Conservancy, 152 I.B.L.A. at 74 (citing Ky. Res. Council, Inc.

v. Babbitt, 997 F. Supp. 814, 820-21 (E.D. Ky. 1998)). Some of the

arguments that the Secretary makes in favor of her position that

WVHC is ineligible for fees actually go to the issue of whether

WVHC made a substantial contribution, that is, whether there is a

causal nexus between WVHC’s work on the appeal and the remand.

The Secretary’s argument that it was OSM, and not WVHC, that filed

the motion with the Board seeking a remand is one example. In any

event, the Board did not make a finding with respect to substantial

contribution because it did not reach the issue. The district court,

however, found that WVHC made the necessary substantial contribu-

tion because if it had not appealed the Assistant Director’s decision

to the Board, "it is unlikely that OSM would have discovered its error

in failing to review the proper documents." The Secretary argues that

the district court was without authority to make this finding. We

agree.

SMCRA’s fee-shifting statute allows attorney fees to be "assessed

against either party [in administrative proceedings] as . . . the Secre-

tary [in actuality, the Board] . . . deems proper. 30 U.S.C. § 1275(e).

This means that the substantial contribution (or entitlement) determi-

nation, which is the second step in the determination of whether a fee

award is proper, is committed by statute to the Board’s discretion. In

part II.B, supra, we reviewed de novo the Board’s legal determination

of whether WVHC achieved success on the merits. The substantial

contribution determination is different, however. The regulation

explicitly labels the substantial contribution determination as a "find-

ing," indicating that it is a factual determination unlike the legal ques-

tion of success on the merits. Cf. Bond v. Blum, 317 F.3d 385, 397-

98 (4th Cir. 2003) (reviewing as a factual finding the district court’s

determination of "the reasonableness of the [plaintiff’s] legal posi-

12 W. VA. HIGHLANDS CONSERVANCY v. NORTON

tions" in awarding attorney fees to copyright defendants); Lebron v.

Mechem Fin. Inc., 27 F.3d 937, 946 (3rd Cir. 1994) (in considering

petition for attorney fees in the bankruptcy context, "[t]he inquiry

concerning the existence of a substantial contribution is one of fact.");

In re Consol. Bancshares, Inc., 785 F.2d 1249, 1253 (5th Cir. 1986)

(same). The factual question of whether WVHC made a substantial

contribution toward achieving the Board-ordered remand is therefore

for the Board to answer in the first instance.

The Board, of course, did not make a finding on the substantial

contribution issue, and we must decide whether the district court

could step in and make the finding itself. As the Supreme Court has

said, "it is . . . familiar appellate procedure that where the correctness

of the lower court’s decision depends upon a determination of fact

which only a jury could make but which has not been made, the

appellate court cannot take the place of the jury. Like considerations

govern review of administrative orders." SEC v. Chenery Corp., 318

U.S. 80, 88 (1943). Chenery is cited most frequently for the principle

that a reviewing court may only uphold an agency decision on

grounds relied upon by the agency. See, e.g., GTE South, Inc. v. Mor-

rison, 199 F.3d 733, 741-42 (4th Cir. 1999). Its holding rests, of

course, on the more basic proposition that a reviewing court may not

decide matters that Congress has assigned to an agency. See INS v.

Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355 (2002) (per curiam)

("Generally speaking, a court of appeals should remand a case to an

agency for decision of a matter that statutes place primarily in agency

hands."); Chenery, 318 U.S. at 88 ("If an order is valid only as a

determination of policy or judgment which the agency alone is autho-

rized to make and which it has not made, a judicial judgment cannot

be made to do service for an administrative judgment."). The district

court therefore erred in deciding the factual question of whether

WVHC made a substantial contribution toward achieving the remand

order in the administrative appeal. That question was for the Board

to decide, and the district court should have remanded the matter to

the Board for the appropriate factfinding. We therefore vacate the

grant of summary judgment to WVHC on the issue of substantial con-

tribution. The case must be remanded to the Board for consideration

of this issue. If the Board should find that WVHC made a substantial

contribution entitling it to fees, the Board will also set the amount.

W. VA. HIGHLANDS CONSERVANCY v. NORTON 13

IV.

We affirm the district court’s award of summary judgment to

WVHC insofar as it determines that WVHC is eligible for attorney

fees as a result of achieving some success in its administrative appeal.

We vacate the award of summary judgment insofar as it finds that

WVHC made a substantial contribution and is thus entitled to fees.

We remand the case to the district court which will, in turn, remand

to the Interior Board of Land Appeals for further proceedings on the

question of substantial contribution.

AFFIRMED IN PART, VACATED IN PART,

AND REMANDED