Petitioners Reply Brief — United States Environmental Protection Agency v. Northern Plains Resource Council

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REPLY BRIEF FOR THE PETITIONER

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TABLE OF AUTHORITIES

Cases:

Boeing Co. v. Van Gemert, 444 U.S.

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Cassidy v. Virginia Carolina Veneer C orp.,

Re

Equal Employment Opportunity Commission v.

St. Louis-San Francisco Ry., 651 F.2d

eel ee er ie ne soe Sie

Halderman v. Pennhurst State School &

Hospital, 673 F.2d 628, cert. granted on

other grounds, 457 U.S. 1131 (1982) .....

Hidell y. International Diversified Investments,

Oe ge a. Sg NO AEN eine ee ene

Liberty Mutual Insurance Co. v. Wetzel,

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Memphis Sheraton Corp. vy. Kirkley,

sorilighjlt ca fgg CE EE Tarn eat cee NON) ga

Republic Natural Gas Co. v. Oklahoma,

Cady fa Ee ee

Taylor v. Teletype Corp., 648 F.2d 1129,

cont. Gene 45 US OO) ................

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Page

Cases—Continued:

White v. New Hampshire Department of

Employment Security, 455 U.S. 445 .......... 3

Waltiaes MV. DO, 34) Pee UE ioc os eee tes 2

Statute:

Clean Air Act of 1977, Section 307(f), 42 U.S.C.

(Supp. V) 7607(f)

In the Supreme Court of the United States

OCTOBER TERM, 1982

No. 82-1828

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY,

PETITIONER

Vv.

NORTHERN PLAINS RESOURCE COUNCIL, ET AL.

ON PETITION FORA WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE NINTH CIRCUIT

REPLY BRIEF FOR THE PETITIONER

We briefly reply to the contention advanced by respond-

ent Northern Plains Resource Council (“NPRC”) that the

government’s petition for a writ of certiorari in this case was

filed out of time.

1. The chronology of the proceedings in the court of

appeals was as follows: On March 1, 1982, the court of

appeals entered an order (Pet. App. la-4a) holding the

Environmental Protection Agency liable for attorneys’ fees

under Section 307(f) of the Clean Air Act, 42 U.S.C. (Supp.

V) 7607(f). Plainly, this was not a final judgment because

the court allowed NPRC 14 days in which to specify the size

of its requested fee award and allowed EPA a like period of

time in which to file an opposition (Pet. App. 4a). In April

1982, the parties agreed that $15,000 was a reasonable fee,

but they further stipulated that EPA was reserving its right

(1)

2

to seek further review on the underlying question of

NPRC’s entitlement to fees. NPRC asked the court of

appeals to enter an award of attorneys’ fees that embodied

the parties’ stipulation. Thereafter, the court of appeals

took no action in the matter. By letter dated July 12, 1982

(Pet. App. 6a-7a), counsel for NPRC inquired about the

Status of the matter, but the court did not respond. Because

the case was still pending without entry of a final judgment,

the government, by motion dated October 25, 1982, asked

the court of appeals to stay the entry of final judgment

pending this Court’s decision in Administrator v. Sierra

Club, No. 82-242 (argued Apr. 25, 1983). On March 3, 1983,

the court of appeals denied the government’s motion and

ordered EPA to pay NPRC $15,000 in attorneys’ fees (Pet.

App. 5a). As we explain below, it was not until entry of the

court’s order of March 3, 1983, that there was even arguably

a final judgment from which review could be sought.

2. It has long been settled that an order establishing

liability is not final until the amount of damages has been

deterinined. Liberty Mutual Insurance Co. v. Wetzel, 424

U.S. 737, 744 (1976); Republic Natural Gas Co. v. Okla-

homa, 334 U.S. 62, 71-72 (1948); Catlin v. United States,

324 U.S. 229, 233 (1945). This rule applies with equal force

to judgments awarding attorneys’ fees. Crowder v. Tele-

media, Inc., 659 F.2d 787, 788 (7th Cir. 1981); Cassidy v.

Virginia Carolina Veneer Corp., 652 F.2d 380, 383 (4th Cir.

1981); Equal Employment Opportunity Commission Vv. St.

Louis-San Francisco Ry., 651 F.2d 718, 719 (10th Cir.

1981); Taylor v. Teletype Corp., 648 F.2d 1129, 1140 (8th

Cir.), cert. denied, 454 U.S. 969 (1981); Williams v. Ezell,

531 F.2d 1261, 1263 (Sth Cir. 1976).!

'The application of this rule to judgments for attorneys’ fees was

implicitly recognized by this Court in Boeing Co. v. Van Gemert, 444

U.S. 472 (1980). The Court indicated that judgment against Boeing was

final because it held Boeing liable for a fixed amount. Pending claims

3

We fully accept the rule that a judgment on the merits is

final and appealable even though a claim for attorneys’ fees

has not been decided. Memphis Sheraton Corp. v. Kirkley,

614 F.2d 131, 133 (6th Cir. 1980); Hidell v. International

Diversified Investments, 520 F.2d 529, 532 n.4 (7th Cir.

1975). But, as this Court has noted, this rule simply recog-

nizes the collateral nature of claims for attorneys’ fees.

White v. New Hampshire Department of Employment

Security, 455 U.S. 445, 452 n.14 (1982). See also Halderman

v. Pennhurst State School & Hospital, 673 F.2d 628, 644

(3d Cir.) cert. granted on other grounds, 457 U.S. 1131

(1982); Goodman v. Heublein, Inc., 682 F.2d 44, 47 (2d

Cir. 1982). It does not follow that where the only question

contested is the collateral issue of attorneys’ fees, an order

establishing liability for such fees becomes final before the

amount of that liability is determined.?

In the instant case, therefore, it is clear that the court of

appeals’ order of March 1, 1982, was not final; the court

itself contemplated and called for further submissions from

the parties on the amount of liability. The fact that the

parties ultimately reached agreement on the amount of

liability is of no consequence; clearly, the parties lack

authority to turn an interlocutory order into a final judg-

ment through the submission of a proposed judgment. Only

the court of appeals itself could give the parties’ stipulation

the finality necessary for further review, and the court did

not do so until March 3, 1983.

for attorneys’ fees did not preclude finality because they would be paid

out of the damages already assessed against Boeing; Boeing’s total

liability would not be affected (444 U.S. at 479-480 n.5).

?None of the cases cited by NPRC (Br. in Opp. 4-5 & n.3) is apposite

here because none involved interlocutory determinations of liability

prior to the establishment of damages. As we have shown above, it is the

uniform rule in the courts of appeals that attorneys’ fee awards do not

become final until the amount of the award is fixed.

4

CONCLUSION

The petition for a writ of certiorari should be held and

disposed of in light of this Court's decision in Administrator

v. Sierra Club, No. 82-242.

Respectfully submitted.

Rex E. LEE

Solicitor General

JUNE 1983

DOJ-1983-06