Petitioners Brief — Ruckelshaus v. Sierra Club

Supreme Court brief1983

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on Writ of Geenen to the United States Court of Appeals |

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QUESTIONS PRESENTED

Section 307(f) of the Clean Air Act authorizes fee

awards in litigation under that section “whenever [the

court] determines such award is appropriate.“ The ques-

tions presented are:

(1) whether the court of appeals properly inter-

preted this provision in concluding that its dis-

cretion to award fees is not limited to success-

ful or prevailing parties; and

(2) whether, on the facts of this case, the court

abused its discretion by basing its fee award on

specific findings that the litigation advanced the

objectives of the Clean Air Act.

(i)

TABLE OF CONTENTS

QUESTIONS PRESENTEEDZ᷑en

TABLE OF AUTHORITIES ©0000. .....-------ccceceseseeeereeeneees

STATEMENT — ——ͤ—y—

I. THE CLEAN AIR ACT CONFERS DISCRE-

TION ON THE COURTS TO MAKE ATTOR-

NEY FEE AWARDS, WITHOUT RESTRIC-

TION TO “PREVAILING” OR “SUCCESS-

. ———

A. The Plain Language of Section 307 (f) Au-

thorizes an Award of Fees

The Context of Section 307(f) Within the

Act Suggests No Restriction of Fee Awards

to “Successful” Parties ....................................

The Legislative History Confirms the Ab-

sence of a “Successful” Party Limitation......

. The Court of Appeals’ Interpretation Has

Been Confirmed by Every Federal Court to

Address the Question

. Comparison With Other Fee Award Statu-

tory Provisions Confirms the Court of Ap-

peals’ Interpretation of Section 307 (f)

The Doctrine of Sovereign Immunity Poses

No Bar to the Court of Appeals’ Award of

TABLE OF CONTENTS—Continued

II. THE COURT OF APPEALS DID NOT ABUSE

H —

A. Clarification of the Law Regarding Impor-

tant, Novel and Complex Questions

B. Required Disclosure of Important Ex parte

ET ATT A STON OTR

C. Assistance to the Court and Balanced Repre-

sentation of Competing Interests

D. Guidance to EPA and the Executive Branch

With Respect to Informal Rulemaking Pro-

e ] r

III. IF THIS COURT FINDS THAT THE COURT

OF APPEALS APPLIED AN INCORRECT

LEGAL STANDARD, THE MATTER SHOULD

5 —

. ——ñññññññññx—xñ—ñ———ñ—ñ—ñññññññ—ñ—ññ

Page

TABLE OF AUTHORITIES

Cases

Alabama Power Co. v. Gorsuch, 672 F.2d 1 (D.C.

/ (

Allen Calculators, Inc. v. National Cash Register,

Alyeska Pipeline Service Co. v. Wilderness Society,

SS y 9, 11, 13,

American Pipe & Construction Co. v. Utah, 414

U.S. 538, reh’g denied, 415 U.S. 952 (1974

Army & Air Force Exchange Service v. Sheehan,

102 S. Ct. 2118 (June 1, 1982

Attorney General v. Moore’s Executors, 19 N.J.

ON, en

Brotherhood of Railroad Trainmen v. Baltimore

E Ohio Railroad Co., 331 U.S. 519 (194777

Canadian Aviator, Limited . United States, 324

x 33-34

Carey v. Donohue, 240 U.S. 430 (191) 13

Carpenter v. Andrus, 499 F. Supp. 976 (D. Del.

„% ————PPP——T—V́aä 27

Carr v. Blazer Financial Services, Inc., 598 F. 2d

e a 11

Central Trust Co. v. Harris, 152 Kan. 296, 103

F accinendissinnnsienlinttiniadaiitibbiabindisdenstions 46

Chandler v. Roudebush, 425 U.S. 840 (1976) 27, 29

Charter Oak Fire Insurance Co. v. Mann, 304 F. 2d

£8 S N 8 T

, . 35

Chewning v. Schlesinger, 471 F. Supp. 761 (D. D.C.

11114 ——5—³§ĩ%1—«t⸗ 33

Christiansburg Garment Co. v. Equal Employment

Opportunity Commission, 434 U.S. 412 (1978). 16, 43

Citizens Association of Georgetown v. Washington,

383 F. Supp. 136 (D.D.C. 1974), modified, 535

nn 21-22, 44

Copeland v. Marshall, 641 F.2d 880 (D.C. Cir.

CF - 10, 35

Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir.

%%% T 31

Deane v. Home for Aged Colored Women, 111

REISER ... 42

TABLE OF AUTHORITIES—Continued

Page

De Bardeleben Marine Corp. v. United States, 451

/ ñ 34

Delaware Citizens for Clean Air, Inc. v. Stauffer

Chemical Co., 62 F.R.D. 353 (D. Del. 1974), aff’d

mem., 510 F.2d 969 (3rd Cir. 197597 20-22

Delno v. Market St. Railway Co., 124 F.2d 965 (9th

( — 35

Diamond v. Diehr, 450 U.S. 175 (1981777) 10

EDF v. EPA, 672 F.2d 42 (D.C. Cir. 1982), peti-

tion for rehearing pending, No. 79-1580 (March

%%% A A 26-27

Eastern Transportation Company v. United States,

e / xx 28, 33

Estate of Smith, 68 Ill. App. 3d 30, 24 III. Dec. 451,

385 N.E.2d 363 (App. Ct. 197999 42, 46

Evans v. Adams, 180 S.C. 214, 185 S.E.57 (1936) 42, 46

Federal Land Bank v. Priddy, 295 US. 229

77 32

Federal Trade Commission v. Simplicity Pattern

I a 13

Fedorenko v. United States, 449 U.S. 490 (1981) 13

General Electric Co. v. Southern Construction Co.,

383 F.2d 135 (5th Cir. 1967), cert. denied, 390

U.S. 955 (1968) EIS Se m— Oe 13, 24

Hackley v. Roudebush, 520 F.2d 108 (D.C. Cir.

11 A ———————————— 27

Halperin v. Department of State, 565 F.2d 699

r ! 42

Harrington v. DeVito, 656 F.2d 264 (7th Cir.

1981), cert. denied, 102 S. Ct. 1621 (1982) 35

Hereford v. Unknown Heirs of Tholozan, 306

S.W.2d 648 (Mo. Ct. App. 1957 42

Indian Towing Co. v. United States, 350 U.S. 61

ccc 30-31, 34

In re Atwood’s Trust, 227 Minn. 495, 35 N. W. 2d

r aS “See Re oer 46

In re Bittson’s Trust, 244 N.Y.S.2d 926, 41 Misc.2d

Se SEED: TEI iecseinrcssnsiensieihiailinlesinnieiatpemmnssmstigiinte 42, 46

vii

TABLE OF AUTHORITIES—Continued

Page

In re Estate of Sowder, 185 Kan. 74, 340 P.2d 907

1 — Ä 42

In the Matter of Campbell’s Trust, 258 N. W. 2d

4c 42

Kopet v. Esquire Realty Co., 523 F.2d 1005 (2d

711 GPG 44

Lehman v. Nakshian, 453 U.S. 156 (198177 28-30

Lindy Brothers Builders, Inc. of Philadelphia v.

American Radiator & Standard Sanitary Corp.,

540 F.2d 102 (3rd Cir. 197)))))))))ꝛ 34-35

Luttgen v. Tiffany, 27 R. I. 416, 93 A. 182 (1915) 47

Maher v. Gagne, 448 U.S. 122 (1980): 16

McMahon v. United States, 342 U.S. 25 (1951) 28

Mendoza V. United States, 623 F.2d 1338 (9th Cir.

1980), cert. denied, 450 U.S. 912 (19817 35

Metropolitan Washington Coalition for Clean Atr

v. District of Columbia, 639 F.2d 802 (D.C. Cir.

PRR SEE EE EPR ere eee ree 22, 44

Monroe v. Winn, 19 Wash. 2d 462, 142 P.2d 1022

— . inidladamaitedatiaettaraes 42

Moore v. Alden, 80 Me. 301, 14 A. 199 (1888) 42

Moore v. Neely, 212 Tenn. 496, 370 S. W. 2d 537

F 42

Moore v. United States, 249 U.S. 487 (1919) 32-33

Natural Resources Defense Council, Inc. v. EPA,

484 F.2d 1331 (1st Cir. 1973) 17-18, 22, 41, 43

Natural Resources Defense Council, Ine. v. EPA,

512 F.2d 1351 (D.C. Cir. 1975) 46

Northcross v. Memphis Board of Education, 412

EE a 25

Northern Plains Resource Council v. EPA, 670

4 22, 41

Orme v. Northern Trust Co., 25 III. 2d 151, 183

Pe 42

Parham v. Southwestern Bell Telephone Co., 433

1 ccccnciadiapnssdeibetnetsdematagesees 16

Parker v. Mathews, 411 F. Supp. 1059 (D.D.C.

10 31

viii

TABLE OF AUTHORITIES—Continued

Page

Pennsylvania Railroad Company v. International

Coal Mining Company, 230 U.S. 184 (1913) 10

Perrin v. United States, 444 U.S. 37 (1979) .......... 10

Pete v. UMW Welfare and Retirement Fund of

1950, 517 F.2d 1275 (D.C. Cir. 197595 11, 35

Peyton v. Rowe, 391 U.S. 54 (19689) 34

Reed v. Arlington Hotel Co., 476 F.2d 721 (8th

Cir.), cert. denied, 441 U.S. 854 (1973) 16

Reiter v. Sonotone Corporation, 442 US. 330

en 10, 29

Richards v. Griffith Rubber Mills, 300 F. Supp. 338

11 16

Rickers v. Jones, 551 F.2d 918 (3rd Cir. 1977) 24

Save Our Sound Fisheries Association v. Callaway,

429 F. Supp. 1136 (D. R. I. 19770j⸗) 4142

Schenectady Trust Co. v. Emmons, 33 N. V. S. 2d

688, 263 App. Div. 542 (App. Div. 19427 42, 46

Sierra Club v. Lynn, 364 F. Supp. 834 (W. D. Texas

1973), rev’d in part on other grounds, 502 F.2d

43 (5th Cir. 1974), cert. denied, 421 U.S. 994

(T 44-45

Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir.

PTT passim

Sierra Club v. Gorsuch, 672 F.2d 33 (D.C. Cir.

0 passim

Sierra Club v. Gorsuch, 684 F.2d 972 (D.C. Cir.

— ͤ111—— 0 —————— 6

Tcherepin v. Knight, 389 U.S. 332 (1967) 33

Tolman v. Reeve, 393 III. 272, 65 N. E. 2d 815

—TCTCT—T—. —k——.—ʃ 42

Troy Bank & Trust Co. v. Brantley, 263 Ala. 428,

CE eee 42, 46

Union Central Life Insurance Co., Inc. v. Hamilton

Steel Products, Inc., 493 F.2d 76 (7th Cir.

111111 42

United States v. King, 395 U.S. 1 (196997 28

United States v. Kubrick, 444 U.S. 111 (1979) 28

United States v. Mitchell, 445 U.S. 535 (1980), on

remand, 664 F.2d 265 (Ct. Claims 1981), cert.

granted, 102 S.Ct. 2901 (June 7, 1982) 28

TABLE OF AUTHORITIES-—Continued

Page

United States v. Pfitsch, 256 U.S. 574 (1921)........ 10

United States v. Sherwood, 312 U.S. 584 (1941) 28

Unued States v. Temple, 105 U.S. 97 (1881) 33

United States v. Testan, 424 U.S. 392 (1976)........ 28

United States v. Wittek, 3387 U.S. 346 (1949) ........ 24

Village of Kaktovik v. Watt, 689 F.2d 222 (D.C.

11 — 26-27

Statutes

Clean Air Act of 1977, 42 U.S.C. §§ 7401 et seq.

(Supp. IV 1980)

Section 101 (b) (1), 42 U.S.C. § 7401 (b) (1) 37

Section 111 (a) (1), 42 U.S.C. 87411 (a) (J). 47

Section 111 (f) (2), 42 U.S.C. § 7411 (f) (2) 37

Section 111 ch), 42 U.S.C. § 7411(h) ............. 37

Section 113 (b), 42 U.S.C. § 7413 (b) 24

Section 301 (a) (1), 42 U.S.C. § 7601 (a) (1).. 40

Section 304 (d), 42 U.S.C. § 7604 (d) 12, 18-22,

Section 307 (b) (1), 42 U.S.C. 8 7607 (b) (1).. 35

Section 307 (b) (2), 42 U.S.C. § 7607 (b) (2). 35

Section 307(d), 42 U.S.C. § 7607 (d) 35, 36,

Section 307(d) (3), 42 U.S.C. § 7607 (d) (3). 35

Section 307 (d) (4) (B) (i), 42 U.S.C. § 7607

e ————... c — 4. 40

Section 307 (d) (5) (ii), 42 U.S.C. 8 7607 (d)

— — 35

Section 307 (d) (5) (iv), 42 U.S.C. § 7607 (d)

111 —— ——— 35

Section 307 (d) (7) (A), 42 U.S.C. § 7607 (d)

8 ͤ — 4

Section 307(f), 42 U.S.C. 8 7607(f) ............ passim

Section 322, 42 U.S.C. § 762ã⸗ꝗ⁊œ⸗œẽW, 12

Section 322 (b) (2) (B), 42 U.S.C. § 7622 (b)

..,. 12. 24. 25

Section 322 (e) (2), 42 U.S.C. § 7622 (e) (2). 12, 23

Civil Rights Attorney's Fees Awards Act of 1976,

r . NR 9

TABLE OF AUTHORITIES—Continued

Page

Clean Water Act, 33 U.S.C. § 1251 et seq.

Section 505 (d), 33 U.S.C. § 1365 (d) 23

Section 507 (e), 33 U.S.C. § 1367 (e) 24

Section 509, 38 U.S.C. § 136992 25

Commodities Futures Trading Commission Act of

1974, 7 U.S.C. § 1 et seq.

2 0U UR — —— 9

L ͤ— 9

Consumer Product Safety Act, 15 U. S.C. § 2051 et

seq.

Section 24, 15 U.S.C. 8 2060(c) ............. dove 25, 33

Section 36, 15 U.S.C. § 2072 (a/ 1 25

Deep Seabed Hard Mineral Resources Act, 30

U.S.C. 8 1401 et seq.

Bee ts Se PTI sn cicncccipiticnicmpneeiienminnae 23

Deep Water Port Act of 1974, 33 U.S.C. § 1501

et seq.

r,, ctcnisitenidiendemianiic eminane 23

Endangered Species Act of 1973, 16 U.S.C. § 1531

et seq.

EER SE reine ne

16 U.S.C. § 1540(g) () .

Energy Policy and Conservation Act, 42 U.S.C.

§ 6201 et seq.

42 U.S. C. § 6305 (d) .

Energy Reorganization Act of 1974, 42 U.S. C.

§ 2031 et seq.

42 U.S.C. § 5851 (b) (2) (B)

Federal Tort Claims Act, 28 U.S.C. § 2671 et seq...

Freedom of Information Act, 5 U.S.C. § 552

56 USC. § 58 (a) (4) ()

Government in the Sunshine Act, 5 U.S.C. § 551 et

seq.

J i

& 88 8

TABLE OF AUTHORITIES—Continued

Interstate Commerce Act, 49 U.S.C. § 10101 et

seq.

I I isaac srreesetenennntons

Jeweller’s Hallmark Act, 15 U.S.C. § 294 et seq.

15 U.S.C. §298(c) ..... 6

Marine Protection, Research and Sanctuaries Act

of 1972, 33 U.S.C. § 1401 et seq.

SS USL. § 14688 (6g) (6) ....-..-............................

Noise Contro! Act of 1972, 42 U.S.C. § 4901 et seq.

KKK

Ocean Thermal Energy Conversion Act of 1980,

42 U.S.C. § 9101 et seq.

| Te aR

Outer Continental Shelf Lands Act, 42 U.S.C.

§ 1331 et seg. (Supp. IV 1980)

, ......

48 U.S.C. § 1349 (a) (5 1

43 U.S.C. 5 1349 (b) (2 3 8

Power Plant and Industrial Fuel Use Act of 1978,

42 U.S.C. § 6211 et seq. (Supp. IV 1980)

Privacy Act of 1974, 5 U.S.C. § 552a

5 U.S. C. § 552a (g) (2) () A

5 U.S.C. § 552 (8) (3) (ä.

Real Estate Settlement Procedures Act, 12 U.S.C.

§ 1730f et seq.

Resource Conservation and Recovery Act of 1976.

42 U.S.C. § 6901 et seg. (Supp. IV 1980)

e ꝛ

D...

Right to Financial Privacy Act of 1978, 12 U.S.C.

§ 3401 et seq.

22 —

12 U.S. C. § 3418

Page

xii

TABLE OF AUTHORITIES—Continued

Safe Drinking Water Act, 42 U.S.C. § 201 et seq.

LO ——— 23

42 U.S.C. § 300j-9(i) (2) (B) (ij 24

Surface Mining Control and Reclamation Act of

1977, 30 U.S.C. § 1201 et seq. (Supp. IV 1980)

ES 23

Nee 24

30 U.S.C. § 1275(e) _.............. SS 24

.. 1 25

7171 — 24

Toxic Substances Control Act, 15 U.S.C. § 2601

et seq.

Section 19(d), 15 U.S.C. § 2618(d) 23. 25, 26, 33

Section 20(c) (2), 15 U.S.C. § 2619(c) (2 23

Section 23 (b) (2) (B), 15 U.S.C. § 2622 (b) (2)

100 — a 24. 25

Section 23 (b) (4) (C), 15 U.S.C. § 2622 (b) (4)

Voting Rights Act of 1965, 42 U.S.C. § 1971 et seq.

TE RUIN 9

Legislative Materials

H.R. 6161, 95th Cong., Ist Sess. (1977) 15

H.R. 10498, 94th Cong., 2nd Sess. (1976) saat 15

H.R. Rep. No. 94-1022, 94th Cong., 2d Sess.

— ce 26, 33

H.R. Rep. No 94-1175, 94th Cong. 2d Sess.

— . 17-18

H.R. Rep. No. 94-1742, 94th Cong., 2d Sess.

EE RY ree 15

H.R. Rep. No. 95-294, 95th Cong., Ist Sess.

EE aes ee 17-18, 35-36, 41

S. 252, 95th Cong., Ist Sess. (1977) 15, 19-20

S. 253, 95th Cong., Ist Sess. (1977)ĩ777)7) 15

S. 3219, 94th Cong., 2nd Sess. (1976) 15

S. 4358, 91st Cong., 2nd Sess. (19700) 18

S. Rep. No. 91-1196, 9ist Cong., 2d Sess. (1970) 18-20

xiii

TABLE OF AUTHORITIES—Continued

Page

S. Rep. No. 95-127, 95th Cong., Ist Sess. (1977) 19

Equal Access to Courts: Hearings on S. 2354 Be-

fore the Senate Subcommittee on Improvements

in Judicial Machinery of the Committee on the

Judiciary, 95th Cong., 2d Sess. (1979 13

Staff of the Subcommittee on Environmental Pol-

lution of the Committee on Environmental and

Public Works, 95th Cong., Ist Sess., A Section-

by-Section Analysis of S.252 and S.253 Clean

Air Act Amendments (Comm. Print 1977) 19-20

Miscellaneous

Comment, Court Awarded Attorney's Fees and

Equal Access to the Courts, 122 U. Pa. L. Rev.

f ES rae 46

Congressional Research Service, Awards of At-

torneys Fees by Federal Courts and Federal

Agencies (Jan. 28, 1981) 1 9

Cutler, The Case for Presidential Intervention

in Regulatory Rulemaking by the Executive

Branch, 56 Tul. L. Rev. 830 (1982) 40

D.C. Circuit Upholds NSPS for Coal-Fired Plants,

Ratifies White House, Congressional Input into

Rulemaking, 11 Envtl. L. Rep. 10218 (1981) 39, 48

K. Davis, Administrative Law §§ 6:18, 6:40 (Supp.

ESSERE EE ee a a ee 39-40

Davis, Presidential Control of Rulemaking, 56

e . 40

Dawson, Lawyers and Involuntary Clients: At-

torney Fees From Funds, 87 Harv. L. Rev. 1597

See ——— 42

Dawson, Lawyers and Involuntary Clients in

r een ee 16

Gray, Presidential Involvement in Informal Rule-

making, 56 Tul. L. Rev. 863 (198?) ..... 48

Morrison, Presidential Intervention in Informal

Rulemaking: Striking the Proper Balance, 56

Se Oe ee - . 41,44

xiv

TABLE OF AUTHORITIES—Continued

Page

Rowe, The Legal Theory of Attorney Fee Shift-

ing: A Critical Overview, 1982 Duke L. J. 651 42

2A Sands, Sutherland Statutory Construction,

88 46.05, 46.06, 51.02 (4th ed. 1973) 10, 12, 24

Schwartz, Administrative Law Cases During 1981,

$4 Ad. L. Rev. 88 (1982) ne 40

Verkuil, Symposium on Presidential Control of

Rulemaking: An Introduction, 56 Tul. L. Rev.

1—̃ 40

44 Fed. Reg. 33580 (June 11, 1979), 40 C. F. R.

14. T 1

Executive Order 12291, 46 Fed. Reg. 13193, 3

C. F. R. § 127 (1982), reprinted at 5 U.S.C. § 601

FN fC . 5, 8, 39, 46

122 Cong. Rec. 8300-1 (1976) (remarks of Sen.

111 — 26

122 Cong. Rec. 32854 (1976) (remarks of Sen.

rere 26, 33

122 Cong. Rec. 32855 (1976) (remarks of Sen.

2 e 26

123 Cong. Rec. 18514, 18516. 18528 (1977) .. 6 * 15

eee 42

Websters New International Dictionary (2d ed.

—— 10

STATEMENT

This case involves separate awards of attorney fees

to the Environmental Defense Fund (EDF) and the

Sierra Club under section 307(f) of the Clean Air Act

(“the Act”), 42 U.S.C. § 7607(f) (Supp. IV 1980), in

litigation involving the validity of regulations issued by

the Environmetnal Protection Agency (EPA) under the

Act. The court of appeals awarded fees to EDF because

its efforts in the litigation had furthered the objectives

of the Act in several specific ways. The court found

that litigating the questions raised by EDF clarified the

law regarding important, novel and complex issues under

the Act and that its decision provided guidance to EPA

and the executive branch. The court of appeals empha-

sized EDF’s “exemplary” performance in assisting and

educating it concerning the questions involved. The court

also found that EDF’s participation caused EPA to re-

veal important information which had not previously

been made available to the public or the parties. To

evaluate these findings, it is necessary to consider the

underlying merits litigation and its background.

The regulations in issue were new source performance

standards (NSPS) which established nationally-applicable

limitations for emissions of pollutants from new or modi-

fied coal-fired electric generating plants. Those regula-

tions are important in several respects. The pollutants

regulated by the NSPS are known to cause or contribute

to respiratory illnesses and are emitted in millions of

tons by coal-fired generating plants each year. The proj-

ected costs of complying with the revised NSPS were

estimated as tens of billions of dollars. In addition, the

rulemaking had important implications for the future

development and use of coal resources in the United

States and the feasibility of using coal from eastern

states, which generally has higher sulfur content.

The comment period for the rulemaking closed on Jan-

uary 15, 1979. After that date, during the final stages

of the rulemaking, EPA received written comments and

1 44 Fed. Reg. 33580 (June 11, 1979), 40 C.F.R. Part 60 (1981).

engaged in nine private meetings with representatives of

the coal industry, the majority leader of the Senate and

other representatives of Congress, and officials of the

executive branch, including the President himself. EDF

challenged the NSPS primarily on the basis of these “ex

parte” communications. Two of these meetings were never

recorded in the rulemaking docket: a meeting with the

President on April 30, 1979, and a meeting with Senate

staff on May 1, 1979. EDF learned of these meetings

by obtaining the calendar of an EPA official pursuant to

the Freedom of Information Act.

In its petition for review of the regulations, EDF

challenged the propriety of EPA’s actions under the

recently enacted procedural requirements of section 307

of the Act and the due process clause of the Fifth Amend-

ment. Thereafter, EDF filed a motion for discovery with

respect to the ex parte contacts. In response, EPA op-

posed all discovery on the basis that the court of appeals’

review was limited to the administrative record, as de-

fined by the Act, and categorically asserted that all intra-

executive branch communications, both written and oral,

were excluded from that record.“ With respect to the

other ex parte contacts, EPA contended that the sum-

maries of meetings placed in the record were sufficient,’

although the text of one such summary is only 32 words

long J. App. at 17), and the court characterized an-

her as “net very informative.” Sierra Club I, 657 F.2d

at 389. EPA also acknowledged that it had decided not

to reduce all oral interagency communications to writing

for the rulemaking record.

On June 16, 1980, the court of appeals ordered EPA

to submit affidavits providing information about all but

one of the meetings specified in EDF’s motion. J. App.

2 Respondents’ Memorandum in Opposition to Motion for Leave to

Obtain Discovery, filed May 1, 1980, EDF v. Costle, No. 79-1874

(D.C. Cir.), consolidated with Sierra Club v. Costle, 657 F.2d 298

(D.C. 1982) (hereafter Sierra Club ).

3 Id. at 7.

Id. at 14-15.

24-25. The court ordered EPA to identify the partici-

pants in the meetings and to describe how the meetings

came to be held and their approximate length. Id. EPA

submitted some of the information requested by EDF,’

whereupon EDF pointed owt the lack of documentation

concerning certain of the meetings, including the meet-

ing with the President, and renewed its request for in-

formation.“ Before the court ruled on that request, EPA

“voluntarily” submitted affidavits providing information

concerning the undocumented meetings. J. App. 26-29.

The information disclosed as a result of EDF’s discovery

requests provided the factua! basis for the court of ap-

peals’ resolution of the issues presented in this case; the

affidavits required of EPA are frequently cited in the

court’s opinion on the merits.’

With respect to the propriety of the ex parte meetings

and EDF’s request for further discovery, EPA took the

position that communications within the executive branch

are generally confidential and that nothing in the Clean

Air Act altered that rule. Brief for Respondents at

144-45. EPA repeatedly asserted that such communica-

tions were categorically excluded from the record for

review, regardless of when they occurred. Id. at 145,

147, 173, 179. Accordingly, EPA suggested that all those

communications “are not properly before this court.”

In its discovery request, EDF identified two meetings on

April 30, 1970, a meeting at 10 A.M. with the President and others,

J. App. at 19, and a meeting with White House staff at 2:30 P.M.,

J. App. 15, 17. The court of appeals ordered EPA to submit

affidavits to identify the meetings “by date with reference to the

petitioner’s motion. J. App. at 25. EPA submitted informa-

tion pertaining only to the afternoon meeting, apparently because

it “assumed” that EDF was not interested in documentation of the

meeting with the "resident, arguing that EDF’s Motion did not

refer to it, although EDF’s supporting Memorandum did. J. App. at

26-27, 19.

* Brief for Petitioner Environmental Defense Fund at 43-48,

76-83.

E.., Sierra Club J. 657 F.2d at 387 n.429, 388 n.439, 388 n.441.

389 nn.443-44, 389 n.446, 290 3.451.

Id. at 146. In its ruling on this aspect of the case, the

court of appeals pointed out that the Clean Air Act did

not address the question. 657 F.2d at 400. However, the

court rejected the agency’s broad claim of executive

branch confidentiality, inferring that the Act required

even oral communications to be docketed, regardless of

the time at which they occur, if they are of central rele-

vance to the rulemaking. Based on the affidavits which

EPA had been required to submit, the court was able to

dete.mine that none of the undocketed meetings met that

standard and accordingly the regulations were upheld.

The court poiited out, however, that executive branch

personne] are not exempt from the requirement that all

written materials, including inter-agency communica-

tions, received from “any person” during the comment

period must be placed in the docket. 657 F.2d at 405

n.519 (construing 42 U.S.C. § 7607(d) (4) (B) (i)). Thus,

the court indicated that even inter-agency review docu-

ments are made part of the record for judicial review

by 42 U.S.C. § 7607(d) (7) (A),“ contrary to EPA’s broad

assertion of privilege.

With respect to EDF’s request for further discovery, the

court ruled that it was unnecessary because EPA had

already been required to disclose much, if not all, of the

information EDF sought. 657 F.2d at 390 n.450. Sim-

ilarly, with respect to EDF’s motion to supplement the

record, the court observed that the documents in ques-

tion “have already been lodged and examined by us dur-

ing our review of EDF’s procedural claims,” and accord-

ingly held that it was unnecessary to supplement the

record formally. Id.

This is apparent since the court’s observation is made as a

counterpoint in a discussion of the Act's failure to include inter-

agency review documents, as such, in the judicial review record.

Sierra Club J, 657 F.2d at 404-05 n.519. Although the court was

not explicit, the statute makes clear that inter-agency written ma-

terials which are included in the record on the ground that they

are written materials received from “any person,” 42 U.S.C.

§ 7607(d)(4)(B)(i), are part of the record for judicial review.

42 U.S.C. § 7607 (d) (7) (A).

Shortly before the court of appeals issued its opinion

on the merits in this case, on February 17, 1981, Presi-

dent Reagan signed Executive Order 12291° providing

for oversight of agency regulatory actions by the Task

Force on Regulatory Relief and the Office of Management

and Budget (OMB). Although the Executive Order pro-

vides for submission of proposed and final rulemaking

documents to OMB and provides for OMB comments

thereon, it generally does not address the question

whether such communications should be reflected in the

agency rulemaking record.“ Shortly after the court of

appeals addressed that issue in its opinion in this case,

the Director of the Office of Management and Budget

issued a memorandum setting forth guidance concerning

the question. J. App. at 30-31. The “Stockman Memo-

randum,” issued on June 11, 1981, was directed to all

departments and agencies of the executive branch. It

explains how factual materials received from the public

or developed within OMB or the Task Force on Regula-

tory Relief will be handled when they relate to an agency

informal rulemaking. Under the procedures announced in

the Memorandum, members of the public submitting in-

formation to OMB will be reminded that the information

should also be submitted to the agency in question and

that such agencies should place those materials in the

rulemak. g record. In addition, factual materials devel-

oped wit in OBM will be docketed in the rulemaking

record when submitted to an agency. At its conclusion,

the Memorandum points out that the procedures adopted

are consistent with “the holding of and policies discussed

in Sierra Club v. Costle....” J. App. at 31. The de-

9 46 Fed. Reg. 13193, 3 C. F. R. § 127 (1982), reprinted in 5 U.S.C.

§ 601 app. at 136-38 (1981).

10 The only possible exception is a provision requiring agencies

to withhold promulgation of final rules until the views of the Direc-

tor of OMB with respect to the rule have been included, with the

agency’s response, in the “rulemaking file.” Id. § 3(f)(2), 3 C. F. R.

at 130. However, that provision is inapplicable to rulemakings under

judicial or statutory deadline. Id. §§ 3(f)(2), 8(a)(2), 3 C. F. R. at

130, 133.

cision in this case is the only legal authority cited in the

Memorandum.

Following the court’s opinion on the merits of this

litigation, EDF and the Sierra Club filed motions seeking

awards of attorney fees and costs, relying on section

307(f) of the Clean Air Act. The Justice Department,

representing EPA, then engaged in settlement discussions

with EDF and the Sierra Club concerning the size of an

appropriate award. Although EDF reached a negotiated

settlement with counsel for EPA," that settlement dis-

solved when, in the summer of 1981, the government

adopted a new policy of blanket opposition to attorney

fee awards to non-prevailing parties. On February 5,

1982, the court ruled, contrary to EPA’s contentions, that

attorney fees could be awarded to non-prevailing parties

and that an award was appropriate in this case. Petition

for Writ of Certiorari (hereafter Pet.) at la; Sierra

Club v. Gorsuch, 672 F.2d 33 (1982) (hereafter Sierra

Club II). On July 16, 1982, following unsuccessful set-

tlement negotiations, the court issued its ruling fixing

the amount of the fee awards. Pet. at 23a; Sierra Club

v. Gorsuch, 684 F.2d 972 (1982).

SUMMARY OF ARGUMENT

I. The court of appeals had clear authority to grant

EDF’s fee application in this case even though it upheld

the regulations which EDF challenged. Section 307(f) of

the Clean Air Act empowers the court to award attorney

fees “whenever it [the court] determines that such award

is appropriate.” 42 U.S.C. § 7607(f) (Supp. IV 1980).

The court’s discretion to make fee awards is not limited

11 Jn the court of appeals, EPA conceded that EDF had reached

an agreement with the government which was subsequently rejected

by the Assistant Attorney General. Reply to Oppositions of the

Sierra Club and the Environmental Defense Fund to the United

States’ Motions for Leave to File Out of Time and for Enlarge-

ment of Time to Respond to Motions for Award of Attor:.eys Fees

at 2, filed as Appendix A to Reply Brief for the United States on

the Issue of Attorney’s Fees for Losing Parties under 42 U.S.C.

7607 (F) [sic], filed December 7, 1981.

by the outcome of the underlying litigation. Rather the

determination of an appropriate“ circumstance is gov-

erned by whether the litigation assisted in proper imple-

mentation and administration of the Act or otherwise

served the public interest. Hence, fee awards are not

restricted to “prevailing” or “successful” parties. This

interpretation is confirmed by every source of authority:

(a) the plain meaning of the statutory language, (b)

the legislative history and judicial construction of sec-

tion 307(f), and (c) the legislative history and case law

interpretation of similar statutory provisions. The doc-

trine of sovereign immunity has no bearing on this case,

since it has been waived expressly and the congressional

intent is clear. By contrast, the government’s current

position, that the statute limits fee awards to “success-

ful” parties, has no authoritative support whatsoever.

II. The court of appeals did not abuse its discretion

by awarding fees to EDF. To find an abuse requires a

clear showing that no reasonable person could reach the

same result on the given facts. Here the court issued its

award after analyzing the record in detail and applying

standards consistent with the legislative history of sec-

tion 307(f). Upon this basis, the court found that EDF

had advanced two significant objectives of the Act:

prompt resolution of serious questions of statutory inter-

pretation and citizen participation in monitoring adminis-

tration of the Act. The record supports the court’s find-

ing and demonstrates that EDF contributed to the ad-

vancement of these statutory objectives in four ways:

(1) It helped resolve important, novel and complex

issues of law. EDF’s challenge to the propriety of ex

parte communications resulted in an important develop-

ment in and clarification of the law with regard to ex

parte contacts and presidential involvement in the regu-

latory process. EDF’s challenge brought about resolution

of several close questions of interpretation for future rule-

making under the Act.

(2) It forced important public disclosures of factual

information. Because of EDF’s persistent demands for

document production from EPA, the agency was com-

pelled, over vigorous objection, to produce for the court’s

scrutiny important information which was essential to

a full and fair review of the regulations. The production

and review of this information was significant because

of the subject matter disclosed and the rejection of EPA’s

broad claim of executive branch confidentiality.

(3) It provided balanced representation of competing

interesis in the litigation and assisted the court by “ex-

emplary performance.” The court feund it “absolutely

essential” in this case to have articulate spokesmen for

environmental as well as industrial interests, especially

when dealing with controversial considerations of public

policy. Without EDF’s substantial contribution “the proc-

ess of judicial review might have been fatally skewed.”

Pet. at 18a; 672 F.2d at 41.

(4) Because of the issues EDF raised, the court’s de-

cision gave important guidance to EPA and the executive

branch. As a direct result of EDF’s challenge, the Office

of Management and Budget ordered that regulatory re-

form procedures under Executive Order 12291 be con-

sistent with the holding in this case. The government’s

position was clearly affected by the efforts of EDF in this

litigation.

EDF's efforts clearly both assisted in the proper imple-

mentation and administration of the Act and served the

public interest. Inasmuch as other courts have granted

attorney fees based on similar considerations, there is

nothing radical or revolutionary in the court’s decision.

Moreover, each of these findings is factually supported

by the record and directly related to the goals of the

Act. Accordingly, the court did not abuse its discretion;

the decision to award fees should be affirmed.

III. If this Court determines that the court of appeals

applied an incorrect legal standard, the matter should

be remanded to the court of appeals with appropriate

guidance.

ARGUMENT

I. THE CLEAN AIR ACT CONFERS DISCRETION

ON THE COURTS TO MAKE ATTORNEY FEE

AWARDS, WITHOUT RESTRICTION TO “PRE-

VAILING” OR “SUCCESSFUL” PARTIES.

In this case, EPA seeks reversal of a discretionary

award of attorney fees to respondents Sierra Club and

EDF under section 307(f) of the Clean Air Act (the

“Act”), 42 U.S.C. § 7607 (f) (Supp. IV 1980), which

provides, in relevant part:

“In any judicial proceeding under this section, the

court may award costs of litigation (including rea-

sonable attorney . . fees) whenever it determines

that such award is appropriate.”

42 U.S.C. § 7607(f) (Supp. IV 1980) (emphasis

added).

Section 307(f) is one of numerous attorney fee award

provisions enacted by Congress. As this Court noted in

Alyeska Pipeline Service Co. v. Wilderness Society, 421

U.S. 240 (1975), those provisions vary considerably in

their terms, and

Under this scheme of things, it is apparent that

the circumstances under which attorneys’ fees are to

be awarded and the range of discretion of the courts

in making those awards are matters for Congress to

determine.”

421 U.S. at 262 (footnote omitted, emphasis

added).

Most fee award statutes explicitly require a party to

“prevail” * or to have maintained a “successful ac-

12 The provisions are collected in Congressional Research Service,

Awards of Attorneys Fees by Federal Courts and Federal Agencies

(Jan. 28, 1981).

10 In that case (hereafter cited as Alyeska), this Court reversed

an award of attorney fees for lack of statutory authorization.

4 F.., Civil Rights Attorney’s Fees Awards Act of 1976, 42

U.S.C. § 1988; Voting Rights Act of 1965, 42 U.S.C. § 1973 | (e);

Interstate Commerce Act, 49 U.S.C. § 11708(c) ; Commodities Fu-

tures Trading Commission Act of 1974, 7 U.S.C. §§ 18(f), (g).

tion,” * in order to recover fees. In a few other statutes,

including section 307(f), Congress expanded the “range

of discretion . . . in making these awards” to cases where

the courts determine fee awards to be appropriate.“ “

While such an exercise of discretion is subject to review

for abuse, the statutory standard for awarding fees does

not require the fee applicant to have “succeeded” or

“prevailed.”

A. The Plain Language of Section 307(f) Authorizes

an Award of Fees.

The starting point in interpreting a statute is the

language of the statute itself. Diamond v. Diehr, 450

U.S. 175, 182 (1981); Perrin v. United States, 444 US.

37, 42 (1979). Appling this axiom, section 307(f) clearly

authorized the court of appeals to make an award of fees

in this case. That section unambiguously provides for fee

awards “whenever” the court “determines” an award is

“appropriate.” These words of the statute are to be read

according to their ordinary, contemporary, common mean-

ing. Diamond v. Diehr, 450 U.S. at 182; Perrin v. United

States, 444 U.S. at 42; United States v. Pfitsch, 256 U.S.

547, 551 (1921); Pennsylvania Railroad Company v. In-

ternational Coul Mining Company, 230 U.S. 184, 199

(1913). Moreover, in construing a statute, every word

used by Congress should be given effect. Reiter v. Sono-

tone Corporation, 442 U.S. 330, 338-39 (1979) ; 2A Sands,

Sutherland Statutory Construction § 46.06 (4th ed. 1973).

The relevant dictionary definition of whenever“ is “At

whatever time; no matter when. The definition

of “determine” is “To fix conclusively or authoritatively ;

. .. to decide by authoritative or judicial sentence ... .” *

The definition of “appropriate” is “Specially suitable; fit;

15 Real Estate Settlement Procedures Act, 12 U.S.C. § 2607(d) (2) ;

Right to Financial Privacy Act, 12 U.S.C. §§3417(a)(4), 3418;

Jeweller’s Hallmark Act, 15 U.S.C. § 298(c).

16 See note 34, infra.

17 Webster's New Internatioanl Dictionary, 2910 (2d ed. 1934).

18 Jd. at 711.

proper.“ Thus, fee awards are authorized, by the

terms of section 307(f), at whatever time the court de-

cides that such an award is suitable, proper or fitting.

The statute imposes no other prerequisites, although the

court’s determination must, of course, have a basis in the

record and is reviewable for an abuse of discretion.”

Nonetheless, EPA contends that section 307(f) con-

tains an implicit restriction which turns on the outcome

of the litigation.“ Although the agency’s brief never set-

tles upon a single statement defining the term “appro-

priate,” it does contend that a fee award is not “appro-

priate” when the applicant is “totally unsuccessful,” as

it characterizes Sierra Ciub and EDF to have been in

this action. Pet. Brief at 2. In sum, EPA would appar-

ently require a fee applicant to be successful in some

sense, irrespective of any finding by the court that an

award is “suitable” or in the public interest. Such a re-

striction is notably absent from the statutory language.

10 Jd. at 133.

2° Where permissive statutory language is present, fee awards

have been recognized as properly within the discretionary domain of

the court of first instance. Alyeska, 421 U.S. 240, 260-62 (1975)

Copeland v. Marshall, 641 F. 2d 880, 901 (D.C. Cir. 1980) (en banc) ;

Carr v. Blazer Financial Services, Inc., 598 F.2d 1368, 1370 (5th

Cir. 1979); ef. Pete v. UMW Welfare & Retirement Fund of 1950,

517 F.2d 1275, 1289 (D.C. Cir. 1975).

1 Petitioner's Brief (hereafter “Pet. Brief“) at 9, 20-22, 28, 30.

22 EPA sets out, or at least approves of, seven different defini-

tions of “appropriate”: (1) when a party “succeeded in correcting

a violation of the Act but did not obtain a final judgment,” Pet.

Brief at 9; (2) when parties “accomplish a tangible pollution con-

trol benefit short of judgment,” id. at 20; (3) “a party must at

least not lose,” id. at 21; (4) when a party achieves “abatement

without final judgment,” id.; (5) in “litigation that promotes

‘proper implementation of the Act,“ id. at 25; (6) when parties

are “successful plaintiffs or .. . plaintiffs who accomplish some-

thing concrete short of judgment,” id. at 26; and (7) when parties

achieve “some measure of success,” id. at 30. In addition to one,

some, or all of these, EPA contends that the applicant must also

“contribute to the goals of the Act.” /d.

B. The Context of Section 307(f) Within the Act Sug-

gests No Restriction of Fee Awards to “Successful”

Parties.

Where a particular word or phrase appears in one

part of a statute, but has been omitted from another

which was contemporaneously enacted, it is reasonable to

infer that the omission was intentional. 2A Sands,

Sutherland Statutory Construction § 46.05 (4th ed. 1973).

A comparison of section 307(f) with section 322 of the

Act, 42 U.S.C. § 7622, suggests that Congress deliber-

ately omitted any “success” limitation on the award of

attorney fees under section 307(f). Section 322 provides

a mechanism to prevent retaliation against employees

who testify in or commence proceedings under the Act

or who assist in any action to carry out the purposes of

the Act. Any employee who believes he has been the

subject of retaliation may file a complaint with the Sec-

retary of Labor, who is authorized to investigate the

charges and order appropriate relief. Section 322(b) (2)

(B) provides that the Secretary “shall” award attorney

fees to the complaining employee if a remedial order is

issued, plainly requiring the employee to have obtained

a favorable order in order to be eligible for a fee award.

By contrast, however, if such an employee later seeks

judicial enforcement of the order, the court is authorized

to award fees “whenever the court determines such

award is appropriate.” 42 U.S.C. § 7622(e)(2). Thus

Congress chose to limit the discretion of the Secretary of

Labor to award fees to successful complainants only, but

omitted any such limitation from judicial enforcement

proceedings.

Both these fee award provisions were enacted at the

same time as section 307(f), the provision involved in

this case. The contemporaneous enactment of these pro-

visions strongly suggests that Congress deliberately

28 Section 304(d), 42 U.S.C. § 7604(d), is also an attorney fee pro-

vision and also contains an “appropriate” standard. It was not, how-

ever, enacted contemporaneously with section 307. See discussion

infra at 18-22.

omitted any “successful” party limitation from section

307(f). It is well established that a statute should not be

interpreted so as to insert a term which Congress has

deliberately omitted, especially where that term has been

included in other provisions of the same statute. Fedo-

renko v. United States, 449 U.S. 490, 513, 513-14 n.35

(1981) ; Federal Trade Commission v. Simplicity Pattern

Company, 360 U.S. 55, 66-67 (1959) ; Carey v. Donohue,

240 U.S. 430, 436-37 (1916); General Electric Co. v.

Southern Construction Co., 383 F.2d 135, 138 n.4 (5th

Cir. 1967), cert. denied, 390 U.S. 955 (1968). Accord-

ingly, section 307(f) should not be interpreted to impose

a “successful party” limitation.

C. The Legislative History Confirms the Absence of a

“Successful” Party Limitation.

The 1977 legislative history of section 307(f) indi-

cates clearly that Congress intended to authorize the

To bolster its legislative history argument, the agency resorts

to fee award proposals considered by other congresses, with radi-

cally different structures. See Pet. Brief at 35-36 and 35 n.23. Given

the wide variety in congressionally enacted fee award statutes,

EPA’s brief does nothing more than establish that these provisions

“differ considerably among themselves.” Alyeska, 421 U.S. at 261.

EPA refers to the legislative history of the Equal Access to Jus-

tice Act in support of its position that awards of attorney fees to

a non-prevailing party is so unusual as to be improper. Pet. Brief

14 n.6. EPA refers to a provision in an early version of that Act

which allowed for awards of attorney fees to non-prevailing parties

if the court found the award to be “in the interest of justice.” It

then stated:

“This provision was deemed a ‘radical’ and ‘unacceptable’ de-

parture from current law.. and was eliminated from the bill

prior to hearing.”

Pet. Brief at 14 n.6.

What EPA fails to state is that the party who “deemed” the provi-

sion unacceptable was not a member of Congress, but a representa-

tive of the Department of Justice, which represents EPA in this

litigation. The comment was made by Paul Nejelski, Deputy Assist-

ant Attorney General, Office for Improvements in the Administra-

tion of Justice. Examination of the full passage indicates that the

witness stated that the proposal would constitute “a radical, and,

courts to make discretionary fee awards without a re-

striction based on the outcome of the litigation. In 1976

and 1977, Congress consciously selected the current statu-

tory provision over a proposed alternative which would

have restricted fee awards to parties who “prevailed” or

“prevailed in part.” Significantly, by 1977 those terms

had been so generously construed that adoption of the

limiting terms would have provided essentially the same

standard for which the government now contends. When

Congress rejected those proposed limitations it rejected

the position now advanced by EPA.

In 1976 the Senate passed a bill, 8.3219, which con-

tained the following provision:

“In any judicial proceeding under this Act in which

the United States or an officer or employee thereof

is a party (other than as an intervenor), any party

other than the United States which prevails in such

action shall recover from the United States the rea-

sonable costs for such party’s participation in such

proceeding, including reasonable attorney’s fees, ex-

pert witness fees, and the costs of any studies, analy-

ses, tests, or engineering reports that the court finds

were necesasry to litigate such action. In any case

in our view, unacceptable departure from the current law.” Even

more serious is the Justice Department's omission from its bi ef

of the following statement from the testimony :

“While we are not prepared to say that awarding legal fees to

a losing party can never be justified, we think that such a provi-

sion amounts to an invitation to spurious litigation, particu-

larly in view of the breadth of the phrase ‘in the interest of

justice.“

Equal Access to Courts: Hearings on S.2354 Before the

Senate Subcommittee on Improvements in Judicial Machin-

ery of the Committee on the Judiciary, 95th Cong., 2d Sess.

31 (1978) (emphasis added).

Not only has the Department of Justice cited its own view of the

disputed issue as authoritative, it has seriously distorted even its

own views, since it conceded that “awarding legal fees to a losing

party” might be justified in some cases. Id.

in which such party prevails in part, the court shall

have discretion to award such reasonable costs.” *

The House, however, passed a bill with a provision iden-

tical to the version of section 307(f) finally enacted, and

in the Conference Committee the House version prevailed.

H.R. 10498, 94th Cong., 2d Sess. §311(c) (1976), re-

printed in Legislative History at 6071; H.R. Rep. No.

94-1742, 94th Cong., 2d Sess. 115-16 (1976), reprinted in

Legislative History at 4400-01.

Because the 1976 Conference Committee amendments

did not pass during the 94th Congress, various bills were

reintroduced the following January, including H.R. 6161

in the House and two bills introduced in the Senate,

S. 252 and S. 253. H.R. 6161 and S. 253 both provided

that the court “may” award attorney fees “whenever it

determines that such award is appropriate.” H.R. 6161,

95th Cong., Ist Sess. § 305(b) (1977); S. 253, 95th Cong.,

Ist Sess. § 36 (1977), reprinted in Legislative History at

3817. S. 252 contained a fee award provision identical

to the version rejected by the Conference Committee in

the preceding Congress. S. 252, 95th Cong., Ist Sess. § 36

(1977), reprinted in Legislative History at 3644. The

Committee which considered S. 252 reported it to the

Senate floor, where it was eventually adopted. Before

adoption, however, it had been amended so that its

attorney fee provision was made identical to the current

version of section 307(f). 123 Cong. Rec. 18514, 18516,

18528 (1977). Thus, once again Congress rejected the

proposed limitation on fee awards under section 307(f).

The provision rejected by Congress would have limited

awards to prevailing parties and parties who “prevail in

part.” The rejection of the narrower provision evinced

Congress’ intent to confer discretion to award fees even

where the potential recipient did not “prevail in part.”

25 8.3219, 94th Cong., 2d Sess. § 35 (1976), reprinted in A Legis-

lative History of the Clean Air Act Amendments of 1977, Ser. No.

95-16, 95th Cong., 2d Sess. at 4689 (1978) (hereafter “Legislative

History”) (emphasis added).

The significance of that choice is emphasized by the

broad interpretation which the phrase “prevailing party”

had, by 1977, received in the courts. EPA concedes that

it had been construed to include parties who “prevail”

by settlement rather than by litigated judgment, Pet.

Brief at 20-21 & n.13, and that interpretation was con-

firmed by this Court in Maher v. Gagne, 448 U.S. 122,

129 (1980). Even before 1977, several courts had awarded

fees to parties who received little or none of the relief

claimed, even under “prevailing party” standards. See,

e.g., Reed v. Arlington Hotel Co., 476 F.2d 721 (8th Cir.),

cert, denied, 414 U.S. 854 (1973); Parham v. Southwest-

ern Bell Telephone Co., 433 F.2d 421 (8th Cir. 1970);

Richards v. Griffith Rubber Mills, 300 F. Supp. 338 (D.

Ore. 1969). See also Dawson, Lawyers and Involun-

tary Clients in Public Interest Litigation, 88 Harv. L.

Rev. 849, 891-93 (1975). It is unnecessary in the present

case to resolve whether those cases properly interpreted

the term “prevailing party” because that standard is

absent from the Clean Air Act and its interpretation is

not involved in this case. The cases cited are indicative,

however, of the broad interpretation given to the stand-

ard. Hence, Congress’ deliberate rejection of any form

of “prevailing party” limitation for section 307(f), de-

spite the expansive interpretation already given that

term, indicates its intent to confer broad authority on

the courts to make discretionary fee awards.

Two House Reports which accompanied the 1977

Amendments support the court of appeals’ interpretation

of section 307(f) and undermine EPA’s position. Both

state:

“In the case of the section 307 judicial review liti-

gation, the purposes of the authority to award fees

are not only to discourage frivolous litigation, but

also to encourage litigation which will assure proper

party.’ In fact, such an amendment was expressly

rejected by the committee, largely on the grounds set

forth in NRDC v. EPA, 484 F.2d 1331, 1388 (lst

Cir. 1973) .” *

These Reports expressly rejected any limitation on fee

awards to the “prevailing party.” They explicitly state

that the “purposes of the authority to award fees” are

to “assure proper implementation and administration of

the act or otherwise serve the public interest.” Every

court which has interpreted section 307(f) or similarly-

worded provisions has considered and implemented these

purposes in reaching a fee award decision. See pp. 20-23,

26-27, infra. Similarly, in Christiansburg Garment Co.

v. Equal Employment Opportunity Commission, 434 U.S.

412, 415-16 (1978), this Court recognized, in another

statutory context, that discretionary fee award provisions

“entrust . . . the effectuation of statutory policy to the

discretion of the . . . courts.”

The court of appeals’ rationale for rejecting any “pre-

vailing party” limitation in this case finds further sup-

port in the case cited by the House Reports, Natural

Resources Defense Council, Inc. v. EPA, 484 F.2d 1331

(Ist Cir. 1973) [hereafter cited as NRDC v. EPA]. In

that case, the court held that a fee award was appro-

priate” under section 304 for a party which only par-

tially prevailed. However, the court’s rationale, which

the House Reports expressly adopted, is far broader:

“The authorizing language of § 304(d) permits an

award ‘to any party, whenever the court determines

such award is appropriate.“ . We are at liberty

to consider not merely ‘who won’ but what benefits

were conferred. The purpose of an award of costs

and fees is not mainly punitive. It is to allocate the

costs of litigation equitably, to encourage the achieve-

ment of statutory goals. When the government is

attempting to carry out a program of such vast and

20 H.R. Rep. No. 94-1175, 94th Cong., 2d Sess. 277 (1976) ; H.R.

Rep. No. 95-294, 95th Cong., Ist Sess. 337 (1977), reprinted in

Legislative History at 2804 (1979) (emphasis added).

unchartered [sic] dimensions, there are roles for

both the official agency and a private watchdog. The

legislation is itself novel and complex. Given the

implementation dates, its early interpretation is de-

sirable. It is our impression, overall, that petitioners,

in their watchdog role, have performed a service.”

484 F.2d at 1338 (emphasis added).

Thus the court recognized that the fundamental purpose

for fee awards under the Clean Air Act is “to encourage

the achievement of statutory goals.” The central point,

reflected in both the quoted passage and the House Re-

ports which cited it, and conspicuously avoided by EPA

(Pet. Brief at 27-28), is that fee awards are to be based

on whether the litigation was “in the public interest.”

H.R. Rep. No. 94-1175, 94th Cong., 2d Sess. 277 (1976) ;

H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 337 (1977),

reprinted in Legislative History at 2804.

The 1970 legislative history with respect to the enact-

ment of section 304(d) of the Clean Air Act also supports

the court of appeal’s interpretation of section 307(f) in

this case. In fact, it flatly contradicts EPA’s theory that

fee awards under section 304(d) are limited to “success-

ful” parties. Pet. Brief at 20. In describing section

304(d), the Senate report concisely states the govern-

ing principle as follows:

“The court may award costs of litigation to either

party whenever the court determines that such an

award is in the public interest without regard to the

outcome of the litigation.”

S. Rep. No. 91-1196, 91st Cong., 2d Sess. 65

(1970) (emphasis added).

This report accompanied a bill in which the fee award

provision provided that the court might award attorney

fees whenever it determined that an award would be “in

the public interest.” S. 4358, 91st Cong., 2d Sess. § 304

(1970). At another point, the same report states that

under section 304, “the courts may award costs of litiga-

tion, including reasonable attorney and expert witness

fees, whenever the court determines that such action is

in the public interest.” S. Rep. 91-1196, 91st Cong., 2d

Sess. 38 (1970). These repeated statements of the opera-

tive standard directly contradict any suggested limitation

of fee awards to “successful” parties.

If, for the sake of argument, it were true that Congress

in 1970 intended fee awards to be limited to “successful”

parties, the 1977 legislative history indicates that the

95th Congress intended no such restricted standard to

apply under section 304(d) or section 307(f). In fact,

EPA’s argument that Congress intended section 307(f)

to be no broader than section 304(d) has no support.“

Moreover, even if Congress intended section 307(f) to

parallel section 304 (d), that is because Congress, in 1977,

recognize) that section 304(d) had been broadly con-

strued and chose to endorse that judicial interpretation,

rejecting a proposed limitation of section 304(d) to par-

ties who “prevail” or “prevail in part.”

In 1977, the staff of the Senate Committee on Environ-

ment and Public Works compared the two Senate bills

introduced in that year. The Report noted that the

attorney fee provision of S. 252, quoted above, would have

limited fee awards to those who prevail or prevail in

part and would have applied to “any judicial proceeding

under this Act.” See text quoted at pp. 14-15. This would

have included citizen suits under section 304,“ as well as

27 The only support cited by EPA for its contention is a passage

from a Senate report, quoted in the government’s brief at page 17,

which merely states that the committee had originally intended to

provide a fee award provision in § 307 in 1970 and was, in 1977,

responding to court decisions which held that fee awards could not

be made under that section absent statutory authorization. Indeed,

in describing the operative standard of § 307(f), thet a court “may

in its discretion, award costs of litigation to a party bringing a suit

under section 307,” S. Rep. No. 95-127, 95th Cong., Ist Sess. 99

(1977) (emphasis added), the committee expressed a standard which

is broader than that advanced by the government in this case.

28 This is confirmed by the Report’s description of the proposal.

See Staff Of The Subcommittee On Environmental Pollution Of

The Committee On Environment And Public Works, 95th Cong., Ist

the new provision of section 307(f). Thus, S. 252 would

have restricted the existing fee award provision of sec-

tion 304, which was originally enacted to authorize fee

awards “in the public interest without regard to the

outcome of the litigation.” In light of these proposed

restrictions, the Report notes that one area of controversy

related to the provision was:

“Is there any need to modify the existing judicial

practice of awarding fees based on the individual

circumstances of each case?”

Staff Report at 37, reprinted in Legislative His-

tory at 3893 (emphasis added).

The Senate Committee thus squarely faced the issue

presented in this case: should the courts’ discretion to

award fees be limited to parties who “prevail in part,” or

should the courts continue to award fees “based on the

individual circumstances of each case?” By rejecting any

proposed limitation on section 304 and leaving that sec-

tion unchanged, Congress endorsed the “existing judicial

practice.”

The judicial practice which Congress approved is re-

flected by two district court opinions which specifically

rejected the contention here advanced by EPA that “suc-

cess” is a prerequisite to a fee award. In Delaware

Citizens for Clean Air, Inc. v. Stauffer Chemical Co.,

62 F. R. D. 353 (D. Del. 1974), aff'd mem., 510 F.2d 969

(3rd Cir. 1975), the court considered an application for

attorney fees by a citizens’ group which had challenged

unsuccessfully the defendant’s right to emit sulfur dioxide

above certain levels. In concluding that an award of fees

was not appropriate under section 304 of the Act, the

court observed that a limitation of awards to a prevailing

party was “notably missing” from the Act and concluded

that “ultimate success in a citizen’s suit was not intended

Sess., A Section-By-Section Analysis Of S. 282 And S.253 Clean Air

Act Amendments 37 (Comm. Print 1977), reprinted in Legislative

History at 3893 (hereafter “Staff Report’’).

2 8. Rep. No. 91-1196, 91st Cong., 2d Sess. at 65 (1970).

to be a prerequisite to an award.” 62 F.R.D. at 355.

Although the outcome of the case was a relevant factor,

the court concluded that, in exercising its “equitable

judgment,” it could and should award fees to a losing

party if the litigation “served the objectives of the Act

in some substantial way ....” Id. The court concluded

that a fee award was not appropriate on the facts of the

case because the suit had not induced the defendant to

act in some way which benefited the public, nor had it

“in any other tangible or direct way contributed to

achievement of the objectives of the Clean Air Act.” Id.

Thus, although it reached a different conclusion on the

facts of its case, the court in Delaware Citizens inter-

preted section 304 in the same manner as the court of

appeals herein.

In Citizens Association of Georgetown v. Washington,

383 F. Supp. 136 (D. D.C. 1974), modified, 535 F.2d 1318

(D.C. Cir. 1976) (reversed as to award of attorneys’ fees

for lack of jurisdiction), plaintiffs sought to prevent com-

pletion of two private construction projects on the George-

town waterfront in an action brought under section 304

of the Act. Although plaintiffs were unsuccessful in their

suit, the court concluded that the case was “an excep-

tional case” in which a fee award was appropriate. The

court reviewed the statutory language and legislative his-

tory and reasoned that “success or failure on the merits

has nothing to do with the trial court’s power to award

costs and attorneys’ fees in citizen suits under the Clean

Air Act.” 383 F. Supp. at 144 (emphasis in original).

Accordingly, the court concluded that “an award is ap-

propriate if the suit has benefited the public interest as

declared in the Clean Air Act.” Id. The court further

reasoned that “the advancement of an important legisla-

tive policy may justify the award of costs and fees even

where the plaintiff does not obtain the ultimate relief he

seeks.” Id.

These decisions are squarely in line with the court of

appeals’ decision in this case and directly contrary to

EPA’s position. Congress’ endorsement of them, together

with its rejection of limiting language for both sections

304 (d) and 307(f), renders EPA’s position untenable.

It is immaterial what section 304 (d), which is not in-

volved in this case, was originally intended to mean.

When Congress enacted section 307(f) in 1977 it intended

to confer discretion on the courts to award fees without

limitation to “successful” or “prevailing” parties.

D. The Court of Appeals’ Interpretation Has Been

Confirmed by Every Federal Court to Address the

Question.

Every federal court to consider the issue has con-

cluded that Congress did not intend to restrict fee awards

under the Clean Air Act in the manner now suggested

by EPA. In convincing numbers, decisions interpreting

the fee award provisions of the Clean Air Act have

adopted the same interpretation as the court of appeals

in this case. Northern Plains Resource Council v. EPA,

670 F.2d 847 (9th Cir. 1982); Alabama Power Co. v.

Gorsuch, 672 F.2d 1 (D.C. Cir. 1982); Metropolitan

Washington Coalition for Clean Air v. District of Colum-

bia, 639 F.2d 802 (D.C. Cir. 1981); NRDC v. EPA, 484

F.2d 1331 (1st Cir. 1973); Delaware Citizens for Clean

Air, Inc., v. Stauffer Chemical Co., 62 F. R. D. 353 (D. Del.

1974), aff'd mem., 510 F.2d 969 (3rd Cir. 1975) ; Citizens

Association of Georgetown v. Washington, 383 F. Supp.

136 (D.D.C. 1974), modified, 535 F.2d 1318 (D.C. Cir.

1976) (reversed as to award of attorneys’ fees for lack

of jurisdiction).

Each of these cases has rejected the concept, advanced

by EPA here, that fee awards under sections 304(d) and

307(f) are restricted in some manner based upon the

outcome of the litigation. Thus every court interpretation

of the attorney fee provisions of the Clean Air Act sup-

ports the decision of the court of appeals in this case.

E. Comparison With Other Fee Award Statutory Pro-

visions Confirms the Court of Appeals’ Interpreta-

tion of Section 307(f).

The court of appeals’ decision is further supported by

a comparison of that provision with other statutory fee

award provisions. In the vast majority of fee award

statutes, Congress has limited the discretion of the court

by requiring that fees be awarded only to parties who

have achieved some specified measure of success in the

litigation, typically a “prevailing party,” “ a “successful

party,”* or a “substantially prevailing party.”™ Al-

though more than 150 fee award provisions have been

enacted,” only 20 authorize attorney fee awards when-

ever the court determines it to be appropriate.“ Al-

though those 20 provisions are not limited to “successful”

% See note 14, supra.

n See note 15, supra.

2 F. g., Freedom of Information Act, 5 U.S.C. 5 552(a) (4) (E);

Privacy Act, 5 U.S.C. §§ 552a(g)(2)(B), (8) (3) (B); Government

in the Sunshine Act, 5 U.S.C. § 552b(i).

33 See note 12, supre.

* Toxic Substances Control Act, 15 U.S.C. §§ 2618 (d), 2619(c) (2),

2622 (b) (4 (C); Endangered Species Act of 1973, 16 U.S.C. § 1540

(g) (4); Surface Mining Control and Reclamation Act of 1977, 30

U.S.C. § 1270 (d) (Supp. IV 1980); Deep Seabed Hard Mineral Re-

sources Act, 30 U.S.C. §1427(c) (Supp. IV 1980); Clean Water

Act, 33 U.S.C. § 1365 (d); Marine Protection, Research and Sanc-

tuaries Act of 1972, 33 U.S.C. § 1415(g) (4); Deep Water Port Act

of 1974, 33 U.S.C. § 1515(d); Safe Drinking Water Act, 42 U.S.C.

§ 300j-8(d) ; Noise Control Act of 1972, 42 U.S.C. § 4911(d) ; Energy

Reorganization Act of 1974, 42 U.S.C. §5851(e)(2) (Supp. IV

1980) ; Energy Policy and Conservation Act, 42 U.S.C. § 6305(d) ;

Resource Conservation and Recovery Act, 42 U.S.C. § 6972(e) ; Clean

Air Act, 42 U.S.C. §§ 7604(d), 7607(f), 7622(e)(2); Power Plant

and Industrial Fuel Use Act of 1978, 42 U.S.C. § 8435(d) (Supp. IV

1980); Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C.

§9124(d) (Supp. IV 1980) ; Outer Continental Shelf Lands Act, 43

U.S.C. § 1349 (a) (5) (Supp. IV 1980).

parties, they are located in 16 statutes, some of which con-

tain other fee award provisions“ which all require by

their terms that the fee applicant establish “a violation”

or succeed in obtaining an order in his favor. Thus, a

comparison with other statutory provisions indicates that

one of the most unusual features of section 307(f) is the

absence of any restriction based upon the outcome of the

litigation.

It is well established that where a statute with respect

to a subject contains a given provision, the omission of

such a provision from a similar statute is significant to

show that a different intention existed. United States v.

Wittek, 337 U.S. 346, 365-66 (1949) ; Richerson v. Jones,

551 F.2d 918, 927-28 (3rd Cir. 1977); General Electric

Company v. Southern Construction Company, 383 F.2d

135, 138 n.4 (5th Cir. 1967), cert. denied, 390 U.S. 955

(1968); 2A Sands, Sutherland Statutory Construction

§ 51.02, at 291 (4th ed. 1973). Section 307(f) differs

from other fee award provisions because Congress de-

liberately omitted precisely the kind of restriction which

EPA here urges this Court to impose. This confirms the

court of appeals’ conclusion that the omission was delib-

erate and that EPA’s restrictive interpretation should

be rejected.

In addition to the omission of any “prevailing” or

“successful” party limitation, section 307(f) is unusual

in another respect. Of the many statutory fee award

provisions enacted by Congress, we have found only three

which authorize fee awards at all in judicial proceedings

to review agency regulations: Clean Air Act section

307(f), Consumer Product Safety Act (“CPSA”) sec-

*%5 Toxic Substances Control Act, 15 U.S.C. § 2622(b)(2)(B);

Surface Mining Control and Reclamation Act, 30 U.S.C. §§ 1270(f),

1275(e), 1293(c); Clean Water Act, 33 U.S.C. §1367(c); Safe

Drinking Water Act, 42 U.S.C. § 300j-9(i) (2) (B) (ii); Energy Re-

organization Act of 1974, 42 U.S.C. §5851(b)(2)(B) (Supp. IV

1980); Resource Conservation and Recovery Act, 42 U.S.C. § 6971

(e); Clean Air Act, 42 U.S.C. F 7413(b), 7622(b) (2) (B); Outer

Continental Shelf Lands Act, 42 U.S.C. § 1349 (b) (2).

tion 24 (15 U.S.C. § 2060(c)), and Toxic Substances

Control Act (“TSCA”) section 19(d) (15 U.S.C. § 2618

(d)).% Section 307 (f) and TSCA section 19(d) each

authorize awards when the court finds it to be “appro-

priate” and CPSA section 24 empowers the court to award

fees if found to be “in the interest of justice.” None of

the three provisions contains a limitation to a “prevailing”

or “successful” party, although other fee award provi-

sions in the same statutes do require that an order be

issued in the fee applicant’s favor or that a violation of

the Act be established.” Moreover, all three provisions

were enacted at approximately the same time and have

the same general purpose. Thus, although these statutes

are not directly involved in this case, their legislative

histories are helpful in discerning Congress’ intent with

respect to section 307(f), especially in light of the strik-

ing similarities in the expressions of legislative intent.

Northeross v. Memphis Board of Education, 412 US.

427 (1973). The legislative histories of the TSCA and

CPSA provisions both explicitly state that those provi-

sions are to be liberally construed to effectuate their pur-

poses and that a fee award would be appropriate “where

such award is in the public interest without regard to

the outcome of the litigation.” ** Thus, the court of ap-

%6CPSA authorizes the Consumer Product Safety Commission to

issue safety rules for consumer products, violations of which can

result in the removal of hazardous products from the marketplace.

Under TSCA, the administrator of EPA promulgates regulations

concerning the testing, manufacture, and processing of chemical

substances. Although some other statutes dealing with public health

and safety provide special judicial review provisions for agency

promulgations, none provides for an award of attorney fees. F. g.,

Clean Water Act, 33 U.S.C. § 1369; Resource Conservation and Re-

covery Act, 42 U.S.C. § 6976 (Supp. IV 1980); Outer Continental

Shelf Lands Act, 43 U.S.C. §1349(c) (Supp. IV 1980); Surface

Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1276

(Supp. IV 1980).

* Clean Air Act, 42 U.S.C. § 7622 (b) (2) (5); TSCA, 15 U.S.C.

§ 2622(b)(2)(B); CPSA, 15 U.S.C. f 2072(a).

With respect to TSCA, see 122 Cong. Rec. 32854 (1976) (re-

marks of Sen. Tunney) and 122 Cong. Rec. 8300-01 (1976) (re-

peals decision in this case is directly supported by the

legislative histories of the only other provisions which

authorize fee awards in proceedings to review agency

regulations.

The court of appeals’ decision in this case is also sup-

ported by the case law under statutes other than the

Clean Air Act which authorize the courts to make awards

of attorney fees when found to be “appropriate.” In

EDF v. EPA, 672 F.2d 42 (D.C. Cir. 1982), petition for

reh’g pending, No. 79-1580 (March 1982), decided the

same day as the fee award decision in this case, a differ-

ent panel of the District of Columbia Circuit made an

award of attorney fees to EDF under TSCA section

19(d) for partial success in litigation challenging the

validity of EPA regulations. Quoting the decision in this

case, the court there concluded that the statutory lan-

guage on its face authorized fee awards to “prevailing,

substantially prevailing, or non-prevailing parties in ‘ap-

propriate cases.“ 672 F.2d at 48. The court’s interpre-

tation was confirmed by comparison with other fee award

provisions and by a review of the TSCA legislative his-

tory, in which the ranking Senate Manager on the Con-

ference Committee stated that the fee award provision

“is not restricted to plaintiffs or successful parties.” 672

F.2d at 48; 122 Cong. Rec. 32855 (1976) (remarks by

Sen. Magnuson).

In Village of Kaktovik v. Watt, 689 F.2d 222 (D.C.

Cir. 1982), the court of appeals reversed an award of

attorney fees in a citizen suit enforcement action under

the Outer Continental Shelf Lands Act, 43 U.S.C. § 1349

(Supp. IV 1980), and the Endangered Species Act, 16

U.S.C. § 1540 (g). At the outset, Judge Wilkey noted

that although plaintiffs ultimately lost on all issues, “this

need not bar the award of attorney’s fees and costs

marks of Sen. Tunney). For CPSCA, see the Conference Committee

Report, H.R. Rep. No. 94-1022, 94th Cong., 2d Sess. at 1025 (1976).

689 F.2d at 224. Rather, the opinion recognized that the

fee award decision in the present case relied on the

principle that fees were to be awarded if the litigation

substantially contributed to the goals of the underlying

statute. Jd. However, the court distinguished the present

case in two important respects. First, it noted that in

contrast to the Clean Air Act, one of the statutes involved

in Kaktovik had as one of its primary goals the expedi-

tious development of offshore resources, which had been

hindered, not advanced, by the plaintiffs’ action. Second,

the court recognized that the factual situation in the

present case was “exceptional” in light of the importance,

novelty and complexity of the issues raised. 689 F.2d at

227-28. Ji @ Wilkey reemphasized “that the mere fact

that a plaintiff is unsuccessful should not blind a Court

to the possibility that its efforts may nonetheless make

an award of attorney’s fees and costs appropriate. Each

case, each plaintiff must be judged individually.” 689

F.2d at 228 (emphasis added). See also Carpenter v.

Andrus, 499 F. Supp. 976 (D.Del. 1980).

F. The Doctrine of Sovereign Immunity Poses No Bar

to the Court of Appeals’ Award of Attorney Fees.

EPA’s argument that section 307(f) does not “contain

the requisite waiver of sovereign immunity” and that

the doctrine of sovereign immunity “requires that Section

307(f) be strictly construed in the «4. vernment’s favor,”

(Pet. Brief at 11) has absolutely no foundation.” Sover-

% EPA contends that “the Court of Appeals ignored the doctrine

of sovereign immunity.” (Pet. Brief at 11). Here the Court of

Appeals did not “ignore” the doctrine of sovereign immunity. It did

not erplicitly address the doctrine because it was unnecessary for

the court to do so, in view of its exhaustive discussion of the “Au-

tnority Under Section 307(f) to Grant Attorney’s Fees to Non-

Prevailing Parties” in Part I of its February 5, 1982 opinion. ( Pet.

2a-13a, 672 F.2d at 34-39).

Significantly, this Court also “ignored” the doctrine of sovereign

immunity in the same manner in Chandler v. Roudebush, 425 U.S.

840 (1976), decided on ordinary principles of statutory construction

despite arguments bearing on sovereign immunity made by the gov-

ernment. Brief for the Respondents at 32, 33, Chandler v. Roude-

eign immunity is a defense by the sovereign that it has

not consented to suit for the particular kind of claim

asserted or that it did so with certain explicit procedural

conditions which have not been satisfied. The case law

indicates that sovereign immunity requires “strict con-

struction” to resolve ambiguities in favor of the govern-

ment in three circumstances: (1) in determining whether

the court has subject matter jurisdiction to entertain a

claim against the United States of the sort presented to

it (United States v. Sherwood, 312 U.S. 584, 586-88

(1941); United States v. King, 395 U.S. 1, 4 (1969));

(2) in determining whether the law authorizes the court

to award the particular remedy sought, if the claim is

established (United States v. Testan, 424 U.S. 392, 398-

402 (1976) ; United States v. Mitchell, 445 U.S. 535, 537-

38 (1980), on remand, 664 F.2d 265, 267-68 (Ct. Claims

1981), cert. granted, 102 S. Ct. 2901 (June 7, 1982);

Army & Air Force Exchange Service v. Sheehan, 102

S. Ct. 2118 (June 1, 1982)); and (3) in determining

whether any express procedural conditions or limitations

on the waiver have been satisfied (McMahon v. United

States, 342 U.S. 25, 26-27 (1951); United States v.

Kubrick, 444 U.S. 111, 117-18 (1979); Lehman v. Nak-

shian, 453 U.S. 156, 160-61 (1981) (dictum) ).

EPA has explicitly conceded that section 307(f) consti-

tutes a waiver of immunity for the award of attorney fees

against the government and a rejection of the traditional

“American Rule” against fee shifting. Pet. at 15. Thus,

the government has conceded that the court of appeals

had subject matter jurisdiction to entertain claims for

fee awards and that, as a matter of substantive law, the

court is authorized to award the remedial measure sought,

i.e., the fee award. Accordingly, the only remaining ap-

plicability of “strict construction” is in determining

whether any procedural limitations have been satisfied.

bush, 425 U.S. 840 (1976). Cf. Hackley v. Roudebush, 520 F.2d 108,

122 n.53 (D.C. Cir. 1975).

In this respect, section 307(f) explicitly provides only

one prerequisite for a fee award: a determination by

the court that an award is appropriate. Obviously that

limitation has also been satisfied. Thus, all the terms of

section 307(f) for which strict construction is warranted

have been met.

EPA, however, would apply the strict construction prin-

ciple in a new context: to restrict the substantive terms

intended to guide the court’s discretion. There are sev-

eral serious problems with this contention. First, it is

contrary to the plain meaning of section 307(f), which

must be derived from reading all its words in context.

EPA, however, attempts to isolate the word “appropri-

ate” and impose upon it a “strained and unnatural” con-

struction. See Chandler v. Roudebush, 425 U.S. 840, 848

(1976). Here the term “appropriate” can only be inter-

preted in context with the rest of the provision. Section

307(f) authorizes a fee award “whenever [the court]

determines such award is appropriate.” EPA would

imply restrictive meaning into a provision which is ex-

pressly not restrictive. Such an argument is directly con-

trary to the rule enunciated by this court that, “In con-

struing a statute, we are obliged to give effect, if pos-

sible, to every word used.” Reiter v. Sonotone Corpora-

tion, 442 U.S. 330, 339 (1979).

EPA relies heavily on Lehman v. Nakshian,, 453 U.S.

156 (1981), Pet. Brief at 12, to support its argument

that the word “appropriate” imposes a restrictive mean-

ing. That case does not concern any limitation on a

substantive standard, as EPA would have the court

impose here. The sole question there was whether plain-

tiff was entitled to the procedural right to a jury trial

in the determination of his claim. Moreover, in Lehman

the statutory provision waiving sovereign immunity and

authorizing actions against the government was silent

as to the right to jury trial, while the section providing

a right of action against private employees was later

amended to provide such a right expressly. Based on this

fact, the Court concluded that it was “unnecessary to

go beyond the language of the statute itself” to resolve

the case. 453 U.S. at 165. The Court also found that the

legislative history confirmed its reading. Id. at 165-68.

Finally, in dictum, the majority suggested that even if

the legislative history were ambiguous, plaintiff would not

be entitled to a jury since sovereign immunity would

require the right to a jury to be “affirmatively and

unambiguously” stated. Id. at 168.

In the present case, both the statutory language and

legislative history “affirmatively and unambiguously” in-

dicate that Congress intended to confer discretion on the

courts without limiting that discretion to “prevailing” or

“successful” parties. Thus, Lehman’s findings of a proce-

dural condition on the waiver of sovereign immunity pro-

vides no support for EPA’s attempt to narrow the sub-

stantive terms of section 307(f) in this case.

The second defect in EPA’s argument is its lack of

support. In section 307(f) the term “appropriate” pro-

vides a substantive standard intended to guide the court’s

determination. We are aware of no authority for the

proposition that the principle of strict construction ex-

tends to such terms. Indeed, the case law suggests the

contrary. In Indian Towing Co. v. United States, 350

U.S. 61 (1955), for example, owners and insurers of a

tugboat sued the United States, alleging that the negligent

operation by the Coast Guard of a lighthouse caused the

tug and the barge it was towing to run aground. The

government moved to dismiss the case arguing that the

Act implicitly excluded liability for negligent perform-

ance of uniquely governmental functions. The Court re-

jected that argument, construing the Act in light of the

“broad and just purpose” it was designed to serve,

stating:

“There is nothing in the Tort Claims Act which

shows that Congress intended to draw distinctions so

finespun and capricious as to be almost incapable of

being held in the mind for adequate formulation.”

350 U.S. at 68.

In the present case, EPA would have the court apply a

definition of “appropriate” that is “almost incapable «f

being held in the mind for adequate formulation.”

In Indian Towing, the Court chose not to construe

“strictly” the substantive right conveyed in the statute,

stating:

“Of course, when dealing with a statute subjecting

the Government to liability for potentially great sums

of money, this Court must not promote pay by

careless construction. Neither should it as a self-

constituted guardian of the Treasury import im-

munity back into a statute designed to limit it.”

350 U.S. at 69 (emphasis added).

Although Congress deliberately intended to waive sover-

eign immunity in discretionary terms, EPA would have

this Court resurrect the doctrine because the statute does

not specifically address the particular factual situation

here presented. Thus, EPA would “import immunity back

into a statute designed to limit it.”

The logical extension of EPA’s argument is that all

cases which did not apply such a strict construction on

behalf of the government to the terms of other attorney

fee statutes should be overruled. EPA cites several cases

indicating that the terms of other fee award statutes,

such as “prevailing party” or “substantially prevailing

party,” have been construed liberally, even against the

federal government. Pet. Brief at 20 n.13. EPA cites

these cases with no suggestion that they were decided

incorrectly. Nevertheless, cases such as those making

awards of attorney fees to Title VII discrimination

complainants and to Freedom of Information Act plain-

tiffs who prevailed short of judgment were, under EPA’s

theory, wrongly decided because the courts did not apply

the strict construction principle.”

See, e. g., Parker v. Mathews, 411 F. Supp. 1059 (D. D.C. 1976).

Cuneo v. Rumsfeld, 553 F. 2d 1360 (D. C. Cir. 1977). These and the

In fact, if the principle of strict construction did per-

tain to substantive standards, application of the prin-

ciple would require standards for all factual determina-

tions by the trier-of-fact to be construed in the govern-

ment’s favor. If that premise were correct, then in every

case arising under the Federal Tort Claims Act (28

U.S.C. § 2671 et seg.), for example, the court would be

required to construe the term “negligence” narrowly in

favor of the government, but not with respect to a private

codefendant. Such a result is obviously not intended by

Congress.

Even if EPA’s premise were correct that the term

“appropriate” should be strictly construed, the discussion

regarding the meaning of “appropriate” in the legislative

history should satisfy any inquiry into its construction.

The relevant consideration is the question of congressional

intent expressed in the statute. Federal Land Bank v.

Priddy, 295 U.S. 229, 231 (1935); Eastern Transporta-

tion Company v. United States, 272 U.S. 675, 689 (1927).

It is well established that in construing a waiver of sover-

eign immunity, the statute should be read “according to

the natural and obvious import of the language, without

resorting to subtle and forced construction for the pur-

pose of either liꝛniting or extending its operation.” Moore

other cases cited by EPA (Pet. Brief at 21 n.13) all allow pay-

ment of attorney fees to plaintiffs who “prevail” short of judgment.

Moreover, in Cuneo, the court specifically addressed the question of

sovereign immunity as it related to the retroactivity of the attorney

fees provision of the Freedom of Information Act. The court re-

jected the government's “strict construction” approach explicitly:

“The government contends that since statutes waiving the sov-

ereign immunity of the federal government are to be strictly

construed . . . and that since section 552(a)(4)(E) is silent on

the issue of retroactivity, Congress must not have intended it

to apply to legal services rendered prior to its enactment. The

legislative history, however, reveals that Congress intended that

the courts should look to the existing body of law on the award

of attorney fees in determining whether award is appropriate.”

553 F. ad at 1366-67.

v. United States, 249 U.S. 487, 489 (1919) ; United States

v. Temple, 105 U.S. 97, 99 (1881). In Canadian Aviator,

Limited v. United States, 324 U.S. 215 (1945), this Court

was presented with the question whether the phrase “dam-

ages caused by a public vessel” of the Public Vessels Act

was limited to damages caused by collision. After review-

ing the statutory language and history, the Court con-

cluded that:

“While the general history of the Act as outlined

above does not establish that the statute necessarily

extends to the noncollision cases in view of the rule

of strict construction of statutory waivers of sover-

eign immunity. . , we think congressional adoption

of broad statutory language authorizing suit was

deliberate and is not to be thwarted by unduly re-

strictive interpretation.”

324 U.S. at 222 (citations omitted)

In the present case, even under a strict construction

of the term “appropriate,” section 307(f) authorizes the

courts to make fee awards based upon the public interest

as expressed in the goals of the Act, “without regard to

the outcome of the litigation.” The “strict construction”

*1S. Rep. No. 91-1196, 9ist Cong., 2d Sess. 65 (1970). Just

as the provisions for attorney fees in TSCA (15 U.S.C. § 2618(d))

and CPSA (15 U.S.C. § 2060(c)), see text supra at 24-26, “should

be liberally construed to effectuate the purpose” of the statute

(122 Cong. Rec. 32854 (1976) (re: TSCA); H.R. Rep. No. 94-1022,

94th Cong., 2d Sess. 23 (1976) (re: CPSA)), so too should Clean

Air Act section 307(f). In this regard, EPA’s position in this

ease is not unlike that taken by the government in Chewning

v. Schlesinger, 471 F. Supp. 767 (D.D.C. 1979), in which it argued

that principles of strict construction barred a Civil Rights Act

Title VII employment discrimination action. There the court said:

“The defendant insists, however, that, because the terms of the

1972 Act are silent on the issue of the government's liability

in damages for pre-Act discrimination, full retroactive applica-

tion of Section 717 would violate the rule of strict construction

followed in waivers of sovereign immunity. This attempt to

constrict the scope of the waiver intended by Congress is

directly at odds with the principle that remedial statutes, in-

principle does not support EPA’s argument here any more

than it did in Indian Towing, Eastern Transportation

Company, or Canadian Aviator. As the Court of Appeals

for the Fifth Circuit said in De Bardeleben Marine Corp.

v. United States, 451 F.2d 140, 142 (1971):

“It is often said that the doctrine of sovereign im-

munity is a derivative of the common law maxim

‘the king can do no wrong’. But conceptually it is far

older. Zeus himself carried an aegis or breastplate,

a buckler, and a thunderbolt which made him, the

mythological sovereign, immune from all that could

beset him. And common law provided its sovereign

with the immunity of Zeus. Yet Zeus saw fit to strip

himself of this protection by giving it to Athena,

whereas modern sovereigns have shown much reluc-

tance to do likewise. Probably more accurately, the

reluctance comes from the advocative arm of the

Government contending for a restrictive reading of

legislative amelioration.”

Here Congress’ waiver of immunity should be given its

intended effect.

II. THE COURT OF APPEALS DID NOT ABUSE ITS

DISCRETION.

The decision whether to award attorney fees in this

case is committed to the discretion of the court of

appeals, where the matter originated. The lower court’s

action may be reversed only where there has been a clear

abuse of discretion. American Pipe and Construction Co.

v. Utah, 414 U.S. 538, 560, reh’g denied, 415 U.S. 952

(1974) ; Brotherhood of Railroad Trainmen v. Baltimore

& Ohio Railroad Co., 331 U.S. 519, 524 (1947); Allen

Calculators, Inc. v. National Cash Register, 322 U.S. 137,

142 (1944). An abuse of discretion requires judicial

action that is arbitrary, fanciful, or unreasonable. Lindy

cluding those expressly involving the government, should be

construed liberally.”

471 F. Supp. at 774 (footnotes omitted, emphasis added).

Cf. Tcherepin v. Knight, 389 U.S. 332, 336 (1967); Peyton v. Rowe,

391 U.S. 54, 65 (1968).

Brothers Builders, Inc. of Philadelphia v. American

Radiator & Standard Sanitary Corp., 540 F.2d 102, 115

(3rd Cir. 1976); Delno v. Market St. Railway Co., 124

F.2d 965, 967 (9th Cir. 1942). Judicial abuse of discre-

tion is said to occur only when no reasonable person

“could take the view adopted by the court.” Harrington

v. DeVito, 656 F.2d 264, 269 (7th Cir. 1981), cert. denied,

102 S. Ct. 1621 (1982); Delno v. Market, 124 F.2d 965.

967. The reviewing court should not substitute its inde-

pendent judgment for that of the trial judge when

assessing alleged errors committed within the exercise

of discretion. Mendoza v. United States, 623 F.2d 1338,

1347 (9th Cir. 1980), cert. denied, 450 U.S. 912 (1981);

Copeland v. Marshall, 641 F.2d 880, 901 (D.C. Cir.

1980) (en banc); Charter Oak Fire Insurance Co. v.

Mann, 304 F.2d 166, 168 (8th Cir. 1962). Considerable

deference must be paid to the lower court’s allowance

of attorney fees because the lower court is more familiar

with the quality of counsel and has better knowledge to

assess the course of litigation. Copeland, 641 F.2d at

901; Pete v. UMW Welfare and Retirement Fund of

1950, 517 F.2d 1275, 1289 (D.C. Cir. 1975).

The legislative history of section 307(f) clearly indi-

cates that in exercising the discretion conferred, the

guiding consideration is whether the litigation “served”

the “public interest” as expressed in the goals of the

statute. H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 337

(1977). In this case, the court of appeals concluded that

this litigation substantially contributed to the achieve-

ment of two goals of the Clean Air Act: “prompt resolu-

tion of serious questions of statutory interpretation and

citizen participation in monitoring administration of the

Act through enforcement suits.” (Pet. at 18a; 672 F.2d

at 41.) These objectives are unmistakably purposes of

the Act, reflected in the statute and its legislative history.

The goal of citizen participation is reflected directly

in section 307(d) of the Act, which provides not only an

opportunity for written comment on proposed rules, but

also an opportunity for any interested person to make an

oral presentation of views and a requirement that the

record of such hearings be kept open for 30 days to receive

rebuttal and supplementary information. 42 U.S.C.

§ 7607(d) (3), (d) (5) (ii), (d) (5) (iv). One major con-

cern which led to the 1977 revisions of section 307(d)

was the need for “adequate opportunity to challenge the

factual basis underlying the proposed rule.“ In its

ruling on the merits of the case, the court referred

specifically to the legislative history relating to these

procedural provisions, which states:

“For in the committee’s view, appropriately broad

administrative discretion to promulgate regulations

must be restrained by thorough and careful proce-

dural safeguards that insure an effective opportunity

for public participation in the rulemaking process.“

The goal of prompt judicial resolution of substantial

questions is also reflected in the Act itself. Section 307 (b)

(1), which provides for court of appeals review of certain

actions of the Administrator, limits review of nationally

applicable regulations to the District of Columbia Circuit.

42 U.S.C. § 7607 (b) (1). The congressional desire for

prompt and final resolution of the validity of such regu-

lations is reflected by the 60-day statute of limitations

and the statutory provision that issues which could have

been raised by a petition for review may not be raised

in a subsequent enforcement proceeding. 42 U.S.C.

7607 (b) (1), (2). Moreover, the House Report which

accompanied the 1977 amendments also reflects this con-

cern for prompt judicial resolution of serious issues con-

cerning the validity of EPA actions.“ Thus, Congress

clearly contemplated a mechanism to resolve serious issues

concerning the validity of discretionary agency actions

expeditiously and with finality.

EPA suggests that the Act has a single legislative

purpose, “to protect and enhance the quality of the

42 H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 318 (1977).

#8 Jd. at 319. The court referred to this passage. 657 F.2d at 398.

Id. at 322.

nation’s air resources,” 42 U.S.C. § 7401 (b) (1), Pet.

Brief at 30, and argues that the court of appeals did

not find that EDF furthered that objective. Jd. at 30-31.

Here, again, EPA misses the mark. There is little ques-

tion that EDF sought to further the ultimate statutory

goal, since it contended that the regulations were too

lax. 657 F.2d at 311. Moreover, by advancing the ob-

jectives identified by the court, EDF furthered the ulti-

mate statutory purpose as well. For example, the Act

itself explicitly requires EPA, in the rulemaking proc-

ess for NSPS, to balance varying viewpoints with regard

to air quality, dangers to the public health, and costs of

achieving emission reduction. Clean Air Act sections

111(f) (2), (h), 42 U.S.C. § 7411(f) (2), (h). By chal-

lenging EPA’s ex parte communications with representa-

tives of industry, Congress and other executive branch

officials, EDF sought to enhance opportunities for public

participation in decisions which directly affect air quality

and the public health. As found by the court of appeals,

EDF’s challenge sought to protect the procedural in-

tegrity of this process. In advancing that objective, es-

pecially by representatives of environmental interests

who otherwise lack a financial incentive to participate,

the general goal of enhancement and protection of air

quality is also served.

The court of appeals found that EDF’s conduct of this

litigation contributed to the goals of the Act in four

primary ways: (1) EDF helped to clarify the law with

respect to important, novel and complex questions, Pet.

at 13a, 672 F.2d at 39; (2) as a result of EDF’s efforts,

evidence documenting the alleged ex parte contacts with

the agency were made available to the court and the

public for the first time, Pet. at 18a, 672 F.2d at 41;

(3) EDF’s efforts assisted and educated the court and

provided balanced representation of competing interests

in resolving the highly technical and complex issues in

the case, id.; and (4) judicial resolution of the issues

raised by EDF provided guidance to EPA and a basis for

evaluation of informal rulemaking procedures for the

entire executive branch. Jd. In basing its decision on

these factors, the court of appeals weighed traditional

considerations supporting attorney fee awards in the

past, even, in some cases, to unsuccessful parties. The

court of appeals’ decision should be upheld unless EPA

shows that the court’s reliance on these factors was a

clear abuse of discretion. Significantly, EPA’s brief does

not even address that question.

A. Clarification of the Law Regarding Important,

Novel and Complex Questions.

In its decision to award fees, the court of appeals

found that “EDF’s procedural challenges. . clarified

how the new section 307(d) would operate and

applauded the “critical role played by EDF in the court’s

premier interpretation of the new rulemaking procedures

laid down in the 1977 Amendments,” a review that was

“necessary in order to resolve close questions of inter-

pretation” under the Act. Pet. at 18a, 17a, 18a; 672

F.2d at 41.

There is no dispute concerning the significance of the

ultimate issues involved in this case; the importance of

the case to the national welfare was acknowledged by all

the parties. Pet. at 14a; 672 F.2d at 39. Moreover, reso-

lution of the specific issues raised by EDF has been

widely recognized as clarifying the law concerning proper

informal rulemaking procedures. EDF challenged the

regulations in part on the basis that the agency had

improperly received written comments and permitted ex

parte communications after the close of the comment

period. Of central importance were two meetings in-

volving high level EPA officials, one with the Senate

Committee staff and another with the President, neither

of which had been recorded in the rulemaking docket.

Although the Clean Air Act is silent concerning oral com-

munications after the close of the comment period, the

court of appeals’ ruling established important restrictions

on such eon ‘nications. While upholding the regulations,

the court nonetheless indicated that oral communications

of “central relevance to the rulemaking” must be en-

tered in the rulemaking docket. 657 F.2d at 402. In

addition, the court of appeals rejected EPA’s position

when it concluded that written inter-agency communica-

tions during the comment period are not exempt from the

docketing requirement, 657 F.2d at 405 n.519, thus indi-

cating that they are included by the Act in the record

for judicial review. In both these respects, the court of

appeals’ decision established important limits on a broad

claim of executive branch confidentiality asserted by EPA.

The court of appeals’ resolution of these issues has

been widely recognized as an important development in

the law of ex parte communications in informal rule-

making and with respect to the more fundamental ques-

tion of presidential intervention in executive branch

rulemaking proceedings. The latter question is espe-

cially significant in light of increased involvement of the

White House and OMB in informal rulemakings on the

basis of Executive Order No. 12291, 3 C.F.R. 127 (1982),

reprinted in 5 U.S.C. § 601 app. at 136-38 (1981). How-

ever, even without presidential involvement, the issue of

ex parte communications had been the subject of appar-

ently conflicting judicial opinions which this case helped

to resolve with respect to the Clean Air Act.“ For exam-

ple, one commentator suggested that Sierra Club v. Costle

“could prove to be a landmark development in adminis-

trative law,” that although it was decided only six

months previously, it had “already . . assumed a position

of some prominence in administrative law,” and that it

“appears likely to have significant impacts on both Clean

A Act standards-setting procedures and administrative

principles.” D.C. Circuit Upholds NSPS, 11 Envtl. L.

Rep. 10218 (1981). A leading treatise on the subject of

administrative law has recognized that the case is of

* See cases cited in D.C. Circuit Upholds NSPS for Coal-Fired

Plants, Ratifies White House, Congressional Input into Rulemaking,

11 Envtl. L. Rep. 10218, 10222 n.45 (hereafter “D.C. Circuit Up-

holds NSPS”). See also K. Davis, Administrative Law § 6.18 (Supp.

1982).

“major importance to the law of ex parte communica-

tions” and devotes several pages to discussing the im-

plications of the case for the legality of presidential in-

tervention in rulemaking. K. Davis, Administrative Law

§§ 6:18 at 117-18, 6:40 at 156-59 (Supp. 1982). See also

Schwartz, Administrative Law Cases During 1981, 34

Ad. L. Rev. 83, 88-9 (1982).

This case also received prominent attention in a re-

cent symposium on presidential intervention and informal

rulemaking. Participants in the symposium recognized it

as an important first judicial holding in the area. Ver-

kuil, Symposium on Presidential Control of Rulemaking:

An Introduction, 56 Tul. L. Rev. 811, 814 (1982);

Cutler, The Case for Presidential Intervention in Regula-

tory Rulemaking by the Executive Branch, 56 Tul. L.

Rev. 830, 841 (1982); Davis, Presidential Control of

Rulemaking, 56 Tul. L. Rev. 849, 859 (1982). One par-

ticipant in the symposium observed :

“Sierra Club should resolve much of the controversy

about the substance and procedure of White House

intervention in the informal rulemaking process.”

Cutler, supra, 56 Tul. L. Rev. at 832.

EDF’s challenge involved questions of interpretation

which were not specifically addressed by the Clean Air

Act amendments of 1977 or by EPA regulations.“ Only

one provision of section 307 addresses the question of

post-comment period procedures, requiring that docu-

ments which EPA determines to be of “central relevance

to the rulemaking” be placed in the docket. 42 U.S.C.

§ 7607(d) (4) (B) (i). The court of appeals noted that

“nothing in the statute prohibits EPA from admitting

all post-comment communications into the record; nothing

expressly requires it either.” 657 F.2d at 396-97 (foot-

notes omitted). Moreover, since that provision is lim-

ited to “documents,” the court noted that ol ral face-to-

Despite its clear authority to do so, 42 U.S.C. § 7601(a)(1),

EPA did not adopt regulations addressing the procedural issues

raised by the newly-enacted § 307(d), and has not done so to date.

face discussions are not prohibited anywhere, anytime, in

the Act.” Id. at 400. Accordingly, the court was required

“to glean the law for this case by inference from the

procedural framework provided in the statute.” Id. at

397. As observed by another participant in the symposium

discussed above, the issue raised in this case was “a ques-

tion which has been basically left unanswered by Con-

gress.” Morrison, Presidential Intervention in Informal

Rulemaking: Striking the Proper Balance, 56 Tul. L.

Rev. 879, 880 (1982). Thus, despite Congress’ attempt to

legislate a comprehensive scheme for informal rulemak-

ings under section 307, the 1977 amendments left a gap

which required judicial interpretation in order to resolve

several questions with finality.

Several cases have awarded attorney fees on the basis

of the benefits conferred by clarification of important

questions of law. The potential for such benefits in judi-

cial review proceedings under the Clean Air Act was

clearly recognized by the First Circuit in NRDC v. EPA,

484 F.2d 1331 (1973), which was cited with specific

approval in the 1977 legislative history.“ As the First

Circuit observed in that case:

“Petitioners have thus helped to enforce, refine and

clarify the law. They can be said to have assisted

the EPA in achieving its statutory goals.”

484 F.2d at 1334.

In Northern Plains Resource Council v. EPA, 670 F.2d

847 (9th Cir. 1982), discussed above, the court awarded

fees to a non-prevailing party, in part, “because the suit

presented issues important to the construction of the

Clean Air Act... 670 F.2d at 849. Similarly, in

Save Our Sound Fisheries Ass’n v. Callaway, 429 F. Supp.

1136 (D. R. I. 1977), the court emphasized the public

benefits accruing from the lawsuit, noting “the im-

portance of the rulings gained by the plaintiffs in this

case .. .,” which clarified the duties of the Corps of

* H.R. Rep. No. 95-294, 95th Cong., Ist Sess. 337 (1977), dis-

cussed at pp. 17-18 above.

Engineers under the statutes there in issue. 429 F. Supp.

at 1146 n.16. See also Halperin v. Department of State,

565 F.2d 699, 706 n.11 (D.C. Cir. 1977).

The need to remove ambiguity and clarify the appli-

cable rules or laws has also been recognized as a legiti-

mate basis for awarding attorney fees in other contexts,

even to unsuccessful litigants. As the citations in the

margin indicate, it is well established in many jurisdic-

tions that an award may be properly made to a party

who unsuccessfully claims an interest in a trust or estate,

where there is an ambiguity either in the terms of the

governing document or in the law itself.“ Although there

F. g., Union Central Life Insurance Co., Inc. v. Hamilton Steel

Products, Inc., 493 F.2d 76 (7th Cir. 1974); Troy Bank & Trust Co.

v. Brantley, 263 Ala. 428, 82 So. 2d 618 (1955); Orme v. Northern

Trust Co., 25 Ill. 2d 151. 183 N.E. 2d 505 (1962): Jn re Estate of

Sowder, 185 Kan. 74, 340 P.2d 907 (1959); Moore v. Alden, 80 Me.

301, 14 A. 199, 201 (1888); Deane v. Home for Aged Colored

Women, 111 Mass. 132 (1872); Jn the Matter of Campbell's Trust,

258 N.W. 2d 856 (Minn. 1977) (doctrine of allowance upheld but

specific fees denied for lack of ambiguity); Hereford v. Unknown

Heirs of Tholozan, 306 S.W. 2d 648, 650 (Mo. Ct. App. 1957) (lim-

ited to cases where litigant is not seeking a pecuniary benefit from

the trust or estate); Jn re Bittson’s Trust, 244 N.Y.S. 2d 926, 41

Misc. 2d 5 (App. Div. 1963); Evans v. Adams, 180 S.C. 214,

185 S.E. 57, 61 (1936) (finding the litigation especially beneficial

because it resolved novel questions of law for which there was no

recent precedent); Moore v. Neely, 212 Tenn. 496, 370 S.W.2d 537

(1963); Monroe v. Winn, 19 Wash. 2d 462, 142 P.2d 1022, 1024

(1943); Dawson, Lawyers and Involuntary Clients: Attorney

Fees From Funds, 87 Harv. L. Rev. 1597, 1629-30 (1974); Annot.,

9 A.L.R. 2d 1132. A sufficient ambiguity exists where there is an

honest difference of opinion as to the proper construction of the dis-

puted terms. Tolman v. Reeve, 393 III. 272, 65 N.E.2d 815 (1946):

Estate of Smith, 68 III. App. 3d 30, 24 Ill. Dec. 451, 385 N.E.2d 363

(App. Ct. 1979); Attorney General v. Moore’s Erecutors, 19 NJ.

Eq. 503 (E. & A. 1868). In explaining allowances for attorney fees

Troy Bank & Trust Co., 82 So.2d 618; Schenectady Trust Co. v.

Emmons, 263 A.D. 542, 33 N.Y.S.2d 688 (App. Div. 1942). See aleo

Rowe, The Legal Theory of Attorney Fee Shifting: A Critical

Overview, 1982 Duke L. J. 651 (1982).

are obvious factual differences between the present case

and such cases, the basis for fee shifting is the same for

both; where the litigation is brought in good faith to

resolve an area of ambiguity, all the parties who are

subject to the ambiguous rule or law benefit from the

litigation which resolves the uncertainty.

In the present case, it certainly was not an abuse

of discretion for the court of appeals to conclude that

this litigation served the public interest in several per-

tinent respects. It clarified the law with respect to im-

portant issues: the propriety of ex parte contacts in

informal agency rulemakings and the proper role for

presidential involvement in such rulemakings. In addi-

tion, in rejecting the agency’s broad claim of privilege

and its interpretation of the Act in several respects, the

court clarified EPA’s responsibilities under the Act. Ac-

cordingly, by bringing this action EDF enabled the court

to perform its proper role under section 307, to “enforce,

refine and clarify the law.” NRDC v. EPA, 484 F.2d at

1334. See also Christiansburg Garment Co. v. EEOC,

434 U.S. 412, 419 (1977).

B. Required Disclosure of Important Ex Parte Com-

munications.

In determining that an award of attorney fees was

appropriate, the court of appeals found:

“Several documents pertaining to these contacts pro-

ferred by EPA for the first time on appeal, were

consulted by the court. We have little doubt that

without EDF’s substantial contribution to this aspect

of the case, our deliberations would have been less

enriched and more time consuming.”

Pet. at 18a; 672 F.2d at 41.

learned of these meetings only by obtaining the calendar

of an EPA official pursuant to the Freedom of Informa-

tion Act. J. App. at 13. When EDF filed a motion for

discovery pointing out the lack of documentation, J. App.

at 14, EPA opposed the motion. Nonetheless the court of

appeals ordered EPA to subinit affidavits providing fac-

tual details concerning the meetings specified in EDF's

motion. J. App. at 25. Thereafter, EPA filed affidavits

providing some of the information specified in the court’s

order. EDF, in its brief on the merits, pointed out the

lack of documentation concerning the meeting with the

President and other meetings. It requested the court to

require the submission of further documentation, where-

upon EPA “voluntarily” provided that information by

affidavit before the court could rule on EDF’s request.

J. App. at 26-29; Sierra Club I, 657 F.2d at 390-91.

Thus, as a direct result of EDF’s efforts, important infor-

mation became available to the public and to the court

of appeals which EPA had vigorously opposed disclosing.

As one commentator observed, “it is vital to note that

before upholding EPA’s ex parte contacts, the court re-

quired that they be fully detailed in the record.” Mor-

rison, Presidential Intervention in Informal Rulemaking:

Striking the Proper Balance, 56 Tul. L. Rev. 879, 893

n.31 (1982).

Several courts have recognized the legitimacy of attor-

ney fee awards to parties who did not ultimately prevail

on the merits of the litigation, based upon the value of

exposure to the public and the court of information re-

vealed during the course of the litigation. Metropolitan

Washington Coalition for Clean Air v. District of Colum-

bia, 639 F.2d 802, 804 (D.C. Cir. 1981); Kopet v.

Esquire Realty Company, 523 F.2d 1005, 1008-9 (2d Cir.

1975) (merits of claim not yet determined, but deemed

immaterial); Citizens Association of Georgetown v.

Washington, 383 F. Supp. 136 (D.D.C. 1974), modified,

535 F.2d 1318 (D.C. Cir. 1976) (reversed as to award

of attorneys’ fees for lack of jurisdiction) ; Sierra Club v.

Lynn, 364 F. Supp. 834, 848 (W.D. Tex. 1973), rev’d

in part on other grounds, 502 F.2d 43 (5th Cir. 1974),

cert. denied, 421 U.S. 994 (1975).

By obtaining important disclosures of information over

EPA claims of privilege, EDF clearly served the public

interest. Certainly the court’s conclusion to that effect

was not an abuse of discretion. Although the Clean Air

Act limits judicial review to the record compiled by the

agency, 42 U.S.C. § 7607, EPA was nonetheless required,

over its strenuous objection, to disclose information which

had potential to affect the record. The fact that EPA was

required to submit affidavits which the court considered

in ruling on the merits established an important prece-

dent under the Act concerning the need for a full, fair,

and accurate record for the court’s review. This is true

notwithstanding the ultimate outcome on the merits of

EDF’s challenge to the regulations.

In addition, the subject matter of the information pro-

duced was also important since it concerned the manner

in which section 307’s procedural requirements had been

implemented by EPA. The court required EPA to submit

sworn statements of high officials concerning meetings

with congressional leaders and the President himself, re-

jecting a broad claim of executive branch confidentiality.

Those disclosures enabled the court to make an informed

judgment concerning the propriety of the meetings in

question.

C. Assistance to the Court and Balanced Representa-

tion of Competing Interests.

In its decision to award fees, the court of appeals

found:

“We have little doubt that without EDF’s substan-

tial contribution. ., our deliberations would have

been less enriched and more time consuming... .

“ . It was absolutely essential in a case of this

dimension that this Court have expert and articulate

for environmental as well as industrial

interests. The rulemaking not only involved

technical and complex data, but controversial

erations of public policy. Given the complexity of

the subject matter, without competent representa-

tives of environmental] interests, the process of judi-

cial review might have been fatally skewed.

“The questions raised by Sierra Club and EDF

needed to be resolved; yet no other party had a suffi-

cient economic interest at stake to represent them.

Sierra Club and EDF were required to expend

great efforts to perform their advocacy tasks well in

matters of such technical complexity; their contribu-

tion to the Court’s prompt disposition of all issues

raised in the case was substantial.”

Pet. at 18a-19a, Sierra Club II, 672 F. ad at 41.

The court of appeals’ reliance on the need for balanced

representation is especially appropriate in this case be-

cause section 307(f) was enacted, in part, in response

to the decision in Natural Resources Defense Council, Inc.

v. EPA, 512 F.2d 1351 (D.C. Cir. 1975), which empha-

sized the need for balanced representation in judicial re-

view litigation under the Act. The court held that sec-

tion 307, as enacted in 1970, did not provide authority

to award attorney fees, but urged enactment of a fee

award provision, recognizing the need for a balance in

representation of industry and environmental interests:

“If Congress fails to act, there may come a day soon

when EPA’s determinations, though frequently at-

tacked because they are too stringent, are only sel-

dom contested because they are not stringent enough.”

512 F.2d at 1357-58.

In several other cases, cited in the margin, courts have

awarded attorney fees to non-prevailing parties based

on the need for effective representation of competing par-

ties and interests.“ This factor bears directly on the re-

4% Troy Bank & Trust Co. v. Brantley, 263 Ala. 428, 82 So.2d 618

(1955); Estate of Smith, 68 III. App. 3d 30, 24 III. Dec. 451, 385

N.E.2d 363 (App. Ct. 1979) ; Central Trust Co. v. Harris, 152 Kan.

296, 103 P.2d 902, 905 (1940); Jn re Atwood’s Trust, 227 Minn.

495, 35 N.W.2d 736, 740 (1949) ; In re Bittson's Trust, 244 N.Y.S.2d

926, 41 Mise.2d 5 (App. Div. 1963); Schenectady Trust Co. v.

sult in this case. The interests which EDF and Sierra

Club represent would have been unrepresented without

their participation in this case. Moreover, section 111 of

the Act, under which the NSPS in issue in this case

was promulgated, explicitly requires that environmental,

economic and energy supply considerations be balanced in

establishing the emission limitations. 42 U.S.C. § 7411

(a) (1). Thus, the court of appeals’ concern for balanced

representation reflected a policy concern which is re-

flected not only in the legislative history, but in the oper-

ative provision of the Act itself. Moreover, the court of

appeals recognized the assistance it received as a result

of EDF’s participation when it explicitly acknowledged

the value of EDF’s factual research and legal analysis.

Pet. at 17a; 672 F.2d at 41. For example, without EDF’s

efforts, the court and the public would have been unaware

of the substance of many of EPA’s ex parte contacts, or

that some had even occurred. Based on its first-hand

familiarity with this case, the court also concluded that

the caliber of EDF’s written and oral presentations was

“exemplary.” Pet. at 13a; Sierra Club II, 672 F.2d at

39. In finding that EDF’s participation furthered the

public interest, the court clearly did not abuse the dis-

cretion conferred upon it by Congress.

D. Guidance to EPA and the Executive Branch With

Respect to Informal Rulemaking Procedures.

The court of appeals found that the prompt resolution

of the issues raised by EDF and the Sierra Club “will

contribute both to the Agency’s future efforts to imple-

ment the Clean Air Act and to Congress’s ongoing review

of the Act.” Pet. at 16a; 672 F.2d at 40. The Court

also observed :

“We note too that EDF’s procedural challenges not

only clarified how the new section 307(d) would

Emmons, 33 N. V. S. 2d 688, 263 App. Div. 542 (App. Div. 1942);

Luttgen v. Tiffany, 27 R. I. 416, 93 A. 182 (1915); Evans v. Adams,

180 S.C. 214, 185 S.E. 57, 61 (1936). See generally, Comment,

Court Awarded Attorneys’ Fees and Equal Access to the Courts,

122 U. Pa. L. Rev. 636, 675 & n.234 (1974).

operate, but apparently provided fuel for discussion

about appropriate restrictions on ex parte comments

in other administrative proceedings. See Stockman

Memorandum for Heads of Executive Departments

and Agencies 2 (June 13, 1981).”

Pet. at 18a; 672 F.2d at 41.

As previously discussed, the court of appeals’ decision in

this case addressed several novel questions concerning in-

formal rulemaking procedures which were not addressed

by EPA regulations or by section 307 itself. As one

commentator observed:

“(T]he court elaborated at great length on the often

puzzling requirements of section 307 of the Clean Air

Act, with the result that those involved in Clean Air

Act rulemakings have some guidance on what is

expected of them and Congress has some indication

of gaps in the existing provision that required the

Court virtually to speculate about Congressional in-

tent.“

D.C. Circuit Upholds NSPS, 11 Envtl. L. Rep.

10218, 10222 (1981).

A prominent indication of the importance to the execu-

tive branch of the decision on the merits in this case is

the “Stockman Memorandum,” to which the court re-

ferred specifically. J. App. 30-31. The Memorandum was

plainly influenced by the decision in this case. Although

Executive Order 12291 does not address the issue raised

in this case, the Memorandum attempts to ensure that

agency rulemaking records will reflect information re-

ceived from OMB under the Executive Order.” More-

over, the Memorandum points out that the procedures

5% One participant in the Symposium discussed at pp. 40-41 supra,

is Counsel to the Vice President and the Task Force on Regulatory

Relief, who described the Stockman Memorandum as the “guide-

lines” which “implemented” the Executive Order, Gray, Presidential

Involvement in Informal Rulemaking, 56 Tul. L. Rev. 863, 874-75

(1982), although he notes that the views expressed are not neces-

sarily those of the Task Force or the Vice President. Id. at 863 n.“.

adopted will be consistent with “the holding of and poli-

cies discussed in Sierra Club v. Costle. J. App.

at 31. There is no citation of any other legal authority

in the Memorandum. As a result, it seems clear that the

decision in this case gave important guidance to the

executive branch concerning proper informal rulemaking

procedures. Certainly the court of appeals’ finding that

the litigation furthered the public interest in this respect

was not arbitrary, fanciful or unreasonable. EPA has

made no showing of an abuse of discretion.

III. IF THIS COURT FINDS THAT THE COURT OF

APPEALS APPLIED AN INCORRECT LEGAL

STANDARD, THE MATTER SHOULD BE RE-

MANDED.

It is well established that an award of attorney fees

is committed, within limits prescribed by Congress, to

the discretion of the court in which the matter origi-

nated." Alyeska, 421 U.S. 240 (1975). Such an exercise

of discretion requires the court to base its decision on

its familiarity with the conduct of the matter before it

and with the record as a whole. If this Court rules that

the court applied an incorrect standard, Sierra Club and

EDF should have an opportunity to demonstrate their

eligibility for a fee award under the proper one. If the

standard adopted by this Court is to be interpreted in

a manner similar to other fee award statutes, the deci-

sion to award fees will require consideration of more

than the final judgment of the court. Among such fac-

tors could be a detailed assessment of the issues raised

in this case, the degree to which each party was “success-

ful” on each of those legal issues, and other respects in

which the litigants have “successfully” served the public

interest. In this case, the court of appeals performed a

detailed review of the record, which the government has

51 The Solicitor General himself has acknowledged that § 307(f)

“confers discretion on the courts of appeals to decide when attorneys’

fee awards are appropriate“ Reply Brief for Petitioner (filed in

support of Petition for Certiorari), at 1.

conceded to be “an extended analysis.“ If this Court

now establishes a new interpretation of the statutory

standard, the court of appeals should have the oppor-

tunity to apply that standard to the facts of this case.

CONCLUSION

For the reasons stated, the judgment of the court of

appeals should be affirmed.

Respectfully submitted,

BINGHAM KENNEDY

Counsel of Record

BARRY J. TRILLING

TRILLING & KENNEDY

1100 Seventeenth Street, N.W.

Suite 1100

Washington, D.C. 20036

Telephone: (202) 223-1577

Attorneys for Respondent

Environmental Defense Fund

January 7, 1983

Brief for the Respondent in Opposition at 5, Save the Valley,

Inc. v. EPA, petition for cert. filled, —— US.L.W. —— (US.

Oct. 12, 1982) (No. 82-637).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.