Opposition Brief — New York State Department of Transportation v. Sierra Club

Supreme Court, U.S.

i FILED

FER 27 1906

No. 85-1263 mt

= ane Oe SPANIOL, JR.

IN THE i hw

—_———_.— =

Supreme Court of the Wnited “States

OcrToBer TERM, 1985

NEW YORK STATE DEPARTMENT OF

TRANSPORTATION,

Petitioner,

vs.

SIERRA CLUB, THE CITY CLUB OF NEW YORK,

NYC CLEAN AIR CAMPAIGN, INC., and HUDSON

RIVER FISHERMEN’S ASSOCIATION,

Respondents.

RESPONDENTS’ BRIEF IN OPPOSITION

TO A PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

STEPHEN L. Kass

(Counsel of Record)

JEAN M. McCarro.u

BuTZEL & Kass

Attorneys for Respondents

45 Rockefeller Plaza

New York, New York 10111

(212) 765-1800

February 27, 1986

STATEMENT PURSUANT TO SUPREME COURT

RULE 28.1

The Sierra Club, a respondent herein,

is a California corporation, has _ no

parent companies or subsidiaries (other

than wholly owned subsidiaries), and

has two affiliates, the Sierra Club

Foundation and the Sierra Club Legal

Defense Fund.

The City Club of New York is a New

York not-for-profit corporation, has no

parent companies or subsidiaries (other

than wholly owned Subsidiaries), and

has one affiliate, the City Club Re-

search Foundation, Inc.

The NYC Clean Air Campaign, Inc. is

New York not-for-profit corporation and

has no parent companies, subsidiaries

(other than wholly owned subsidiaries),

or affiliates.

The Hudson River Fishermen's Associa-

tion is a New York not-for-profit cor-

poration and has no parent companies,

subsidiaries (other than wholly owned

subsidiaries), or affiliates.

- iii =

TABLE OF CONTENTS

Pade

STATEMENT PURSUANT TO SUPREME

COE MU 2Ealecscrcesesesens cece i

REASONS FOR DENYING THE WRIT...... 8

POINT I: THIS COURT NEED NOT

DECIDE WHETHER THE

ELEVENTH AMENDMENT

BARS AN AWARD OF

ATTORNEYS' FEES

AGAINST A STATE,

SINCE THE COURT HAS

ALREADY RULED ON

THAT ISSUE... ccccscccs 8

POINT II: THERE IS NO PRESENT

CONFLICT AMONG THE

COURTS OF APPEALS AS

TO WHETHER THE ELEVENTH

AMENDMENT BARS AN AWARD

OF ATTORNEYS' FEES

AGAINST A STATE....... 13

POINT III: THE QUESTION PRE-

SENTED IN THE

PETITION ARISES

ONLY RARELY AND IS

NOT IMPORTANT ENOUGH

TO JUSTIFY GRANTING

THE WRIT... cccccccces 17

CONCLUSION. wcccccccncccccccsccccce 22

7

bayt

ie ioe 2 er .

TABLE OF AUTHORITIES

Cases:

Action for Rational Transit v.

West Side Highway Project, 536

F. Supp. 1225 (S.D.N.Y. 1982),

aff'd in part, rev'd in part

sub nom. Sierra Club v. United

States Army Corps of Engineers,

TOR Fed LULL (26 CAF. L9ES} wcces

Atascadero State Hospital v.

Scanlon, UeSe » 105

Se. Ct. 3142 (1985) occ cccccccccces

Bailey v. Weinberger, 419 U.S.

SSS CID TE) cceccsesesesesecesesese

Browning Debenture Holders'

Committee v. DASA Corp.,

560 F.2d 1078 (2d Cir. 1977).....

California Department of Industrial

Relations v. Homemakers, Inc. of

Los Angeles, 423 U.S. 1063 (1976)

Edelman v. Jordan, 415 U.S. 651

ba) rerrrrrrrr Terr TT Cree Tere

Gagne v. Maher, 594 F.2d 336 (2d

Care E9794 222°C. 448 GU.8. ae

(1980) ..ccccccccccccescccsccceces

Greco v. Orange Memorial Hospital

Corp., 423 U.S. 1000 (1975)......

Page

18

Page

Green v. Mansour, U.S. ’

BUU Be CEs Sao . CLPSR ce cecsacse sce &6

Hallmark Clinic v. North Carolina

Department of Human Resources,

Sie Fie SEL USER CAEs -2PtShecee 18

Huecker v. Milburn, 538 F.2d 1241

Bee Gals SPT El teceracns See eeesees . aS

Hutto v. Finney, 437 U.S. 678

Caw TO) 63:66 66.400865 65586056668 passim

Jordan v. Gilligan, 500 F.2d 701

(6th Cir. 1974), cert. denied,

421 i -F 991 $s po | Sr epeaes se @f @ © 15

Kentucky v. Graham, 473 U.S. 9

105 S. Ct. 3099 (L9SS) wccccvccece 12,

16

Lay v. Williams, 434 U.S. 910

PETC cheno b hs bh SERRE RS 6 4ES OR EKER SO 18

Maher v. Gagne, 448 U.S. 122

en A046 Oe 6446 6S Oe ORES OH OCR 12

Massachusetts Trustees of Eastern

Gas and Fuel Associates v. United

BEBCes, Sil UcSe 239 (L9G4E) cacess 18

Nemeroff v. Abelson, 620 F.2d 339

L2G CAR. THSO) cescccecsess Tetrre 20

Pennhurst State School & Hospital v.

Halderman, 465 U.S. 89 (1984).... 16

Pulliam v. Allen, 466 U.S. 522, 104

Be Gea SECS Camas ek &éessesas seas 46

Sierra Club v. United States Army

Corps of Engineers, 776 F.2d 383

fae Cake SOBSP cess sane pesseienccsds 6

14, 21

Sierra Club v. United States Army

Corps of Engineers, 701 F.2d 1011

(2d Cir. RE 46d kek ebueteneaaeens 4

Sierra Club v. United States Army

Corps of Engineers, 614 F. Supp.

1475 (S.D.N.Y.), aff'd in part,

rev'd in part, 772 F.2d 1043

(20 CEE. EPSP) cc wcecscasscressans 3

Sierra Club v. United States Army

Corps of Engineers, 590 F. Supp.

1509 (S.D.N.Y. 1984), aff'd in

part, rev'd in part, 776 F.2d

SUS (2d CAE. LIES) wccccess eoccced, 21

Sierra Club v. United States Army

Corps of Engineers, 541 F. Supp.

1367 (S.D.N.Y. 1982), aff'd in

part, rev'd in part, 701 F.2d

LULL (G CER. THES} osccscs sacess 3, 4

Constitution:

J Fae. ' a 0 Re > Pee passim

- vii -

Page

Statutes:

Civil Rights Attorney's Fees Awards

Act, 42 WemeGe § 3 a

Clean Water Act § 404, 33 U.S.C.

SB LRG ccccocesssceesesesesesece 3

Equal Access to Justice Act, 28

i on GS 241 ZIG) ccccccecesesecs 4

National Environmental Policy Act,

42 U.S.C. §§ 4321 et seg....... 2

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

NO. 85-1263

NEW YORK STATE DEPARTMENT OF

TRANSPORTATION,

Petitioner,

- against -

SIERRA CLUB, THE CITY CLUB OF NEW

YORK, NYC CLEAN AIR CAMPAIGN, INC.,

and HUDSON RIVER FISHERMEN'S

ASSOCIATION,

Respondents.

RESPONDENTS' BRIEF IN OPPOSITION

TO A PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

STATEMENT OF THE CASE

This brief is submitted on behalf of

the respondents in opposition to the

petition of the New York State Depart-

ment of Transportation ("NYSDOT" or the

"petitioner") for a writ of certiorari

to the United States Circuit Court of

Appeals for the Second Circuit. The

petitioner seeks review of the portion

of the Second Circuit's opinion and

judgment in Sierra Club v. United

States Army Corps of Engineers, 776

F.2d 383 (2d Cir. 1985), that upheld an

award of attorneys' fees against the

petitioner.

The litigation in which the attor-

neys' fees award was made concerned the

proposal to build the West Side Highway

Project ("Westway") along the Hudson

River shoreline of Manhattan. In the

course of the litigation against

NYSDOT, the United States Army Corps of

Engineers (the "Corps"), and the Feder-

al Highway Administration ("FHWA"), the

defendants were found to have violated

the National Environmental Policy Act,

42 U.S.C. §§4321 et seg., and section

404 of the Clean Water Act, 33 U.S.C.

§1344. As a result, Westway was en-

joined in 1982 and again in 1985. See

Action for Rational Transit v. West

Side Highway Project, 536 F. Supp. 1225

(S.D.N.Y. 1982), aff'd in part, rev'd

in part sub nom. Sierra Club v. United

States Army Corps of Engineers, 701

F.2d 1011 (2d Cir. 1983); Sierra Club

v. United States Army Corps of Engi-

neers, 541 F. Supp. 1367 (S.D.N.Y.

1982), aff'd in part, rev'd in part,

701 F.2d 1011 (2d Cir. 1983); Sierra

Club v. United States Army Corps of

Engineers, 614 F. Supp. 1475

(§.D.8.%.}), @€25.64 28 pert, see'a sn

part, 772 F.2d 1043 (2d Cir. 1985).

Westway was to be built in a land-

fill of approximately 200 acres in the

Hudson River. In two trials in 1982,

the district court found that the de-

fendants, principally NYSDOT, had sup-

pressed important information revealing

abundant fish, notably striped bass, in

the area to be filled and had falsely

maintained that the area was a "biolog-

ical wasteland." The district court

found that in so doing the defendants

had acted in bad faith, see, e.g., 541

F. Supp. at 1379, 1381, and the Second

Circuit explicitly upheld those find-

ings as to NYSDOT and the FHWA. See

701 F.2d at 1047.

Four of the plaintiffs in the under-

lying litigation, who are the respond-

ents herein, applied for attorneys'

fees for the portion of the litigation

involving the 1982 trials, under the

common law and, against the federal

defendants, stile the Equal Access to

Justice Act, 28 U.8<C. §2412(d)

ar

wm

("EAJA"). In 1984, the district court

awarded part of the requested fees un-

der the "bad faith" exception to the

common law rule on attorneys' fees.

Sierra Club v. United States Army Corps

of Engineers, 590 F. Supp. 1509

(S.D.N.Y. 1984). In awarding fees for

bad faith conduct before and during

trial, the district court described

NYSDOT's defenses at trial as "lacking

in any colorable basis" and called the

lack of credibility of the defense wit-

nesses "abnormal and extraordinary."

Id. at 1525. The Second Circuit upheld

the bad faith award against NYSDOT, for

the trial work but not the appellate

work, but reversed the bad faith award

against the Corps, holding that the

plaintiffs were entitled to fees

against the Corps under EAJA instead of

the common law.! 776 F.2a at 391-92,

394.

NYSDOT argued in both the district

court and the court of appeals that the

Eleventh Amendment to the United States

Constitution shields it from any attor-

neys' fees award against it in federal

court. Both the district court and a

unanimous panel of the Second Circuit

rejected that argument. In doing so,

they relied on the decisions of this

Court as well as Second Circuit pre-

cedent.

The petitioner now argues that the

Second Circuit ruled incorrectly on the

issue of whether the Eleventh Amendment

bars an award of bad faith attorneys’

fees against a state and that there is

: The FHWA did not appeal the award of

bad faith attorneys' fees against it.

an intolerable conflict among’ the

courts of appeals on that issue. The

petitioner is wrong. For the reasons

stated below, the respondents respect-

fully urge this Court to deny the peti-

tion for a writ of certiorari.

REASONS FOR DENYING THE WRIT

POINT I

THIS COURT NEED NOT DECIDE WHETHER

THE ELEVENTH AMENDMENT BARS AN AWARD

OF ATTORNEYS' FEES AGAINST A STATE,

SINCE THE COURT HAS ALREADY RULED ON

THAT ISSUE

The question the petitioner asks

this Court to resolve is one that does

not need to be resolved, since the

Court has already addressed it and

found the Eleventh Amendment not to be

a bar to the award of attorneys' fees

against a state. The Court's most ex-

tensive consideration of the question

of attorneys' fees against a state was

in Hutto v. Finney, 437 U.S. 678

(iS TSP.

In Hutto, this Court explicitly up-

held the award of attorneys' fees

against state officiais both under the

common law “bad faith" theory and under

the statutory attorneys' fees provision

in 42 U.S.C. §1988. As to the award

under the common law, the Court stated

that "the substantive protections of

the Eleventh Amendment do not prevent

an award of attorneys' fees against the

[State Correction] Department's offi-

cers in their official capacities."

Id. at 692. The Court explained the

purpose of the award as follows: "The

award vindicates judicial authority

without resort to the more drastic

sanctions available for contempt of

court and makes the prevailing party

whole for expenses caused by his op-

ponent's obstinacy." Id. at 689 n.14.

Furthermore, the Court analyzed the

application of its decision in Edelman

v. Jordan, 415 U.S. 651 (1974), to the

attorneys' fees situation and then ex-

plicitly placed the bad faith attor-

neys' fees award it approved within the

10

Edelman category of costs that are "an-

cillary" to prospective relief. Id. at

690.

The petitioner attempts to distin-

guish the present case from Hutto on

the ground that the award in Hutto was

justified by the state officials' vio-

lation of court orders. The bad faith

conduct in the present case, however,

consisted of the petitioner's deliber-

ate suppression -- both before and dur-

ing trial -- of information it was ob-

ligated by law to reveal. Surely, lit-

igants should not have to be ordered to

testify truthfully, and it should not

be constitutionally significant that

the petitioner was not under such ex-

plicit orders. As the district court

found in the instant case, "the Commis-

Sioner [of NYSDOT] was bound to observe

the rules and standards of conduct

11

applicable in a federal court. It nec-

essarily follows that the Commissioner

should be subject to sanctions, includ-

ing the assessment of attorneys’ fees

and disbursements, for failure to ob-

serve these rules and standards." 590

F. Supp. at 1526-27.

After its decision in Hutto, this

Court affirmed the Second Circuit's

ruling in Gagne v. Maher, which had

upheld an award of attorneys' fees

against the Connecticut Commissioner of

Social Services, despite the commis-

sioner's Eleventh Amendment challenge.

594 F.2d 336 (2d Cir. 1979), aff'd, 448

U.S. 122 (1980). Although this Court's

opinion in Gagne dealt with statutory

attorneys' fees rather than common law

fees, the Court repeated its discussion

in Hutto v. Finney, supra, of attor-

neys' fees as part of litigation costs,

12

which a court has “inherent authority"

to award as a means of controlling the

litigants before it. Maher v. Gagne,

Supra, 448 U.S. at 132 n.14. Accord,

Kentucky v. Graham, 473 U.S. ,» 105

S. Ct. 3099, 3107 n.18 (1985) ("Mone-

tary relief that is ‘ancillary' to in-

junctive relief . . . is not barred by

the Eleventh Amendment.").

The rationale for the award of bad

faith attorneys' fees in the instant

case is the same as that for the award

of bad faith attorneys' fees in Hutto:

the vindication of judicial authority.

Accordingly, Hutto is directly applica-

ble and controlling in these circum-

stances.

13

POINT II

THERE IS NO PRESENT CONFLICT AMONG

THE COURTS OF APPEALS AS TO WHETHER

THE ELEVENTH AMENDMENT BARS AN AWARD

OF ATTORNEYS' FEES AGAINST A STATE

The petitioner urges this Court to

grant certiorari in this case as the

only way to resolve an alleged conflict

among the circuits on the issue of

whether the Eleventh Amendment bars at-

torneys' fees awards against a state.

It appears to the respondents, however,

that there is no longer such a con-

flict.

The alleged conflict appears to have

been resolved by this Court's decision

in Hutto v. Finney, supra, which is

discussed in Point I above. In the

present case, the Second Circuit cor-

rectly followed this Court's decisions,

including Hutto, as well as Second Cir-

cuit precedents, in deciding that the

Eleventh Amendment presents no bar to

14

the award of attorneys' fees against

NYSDOT in these circumstances,

The Second Circuit did note in its

opinion the existence of cases in other

circuits holding a contrary view. 776

F.2d at 388-89. Those cases, however,

all predate Hutto and this Court's

affirmance of Gagne v. Maher, supra,

and are no longer tenable. Thus, they

do not present a current conflict among

the circuits requiring this Court's

resolution.

The cases creating the alleged con-

flict with the Second Circuit's posi-

tion are cited on pages 7-8 of the pe-

tition. Not one of the cases was de-

cided after 1976. Accordingly, none

took into account this Court's ruling

in Hutto and its affirmance of Gagne v.

Maher, supra.

Moreover, the cases relied on by the

petitioner rest on the assumption that

attorneys' fees are damages. See,

e.gq., Huecker v. Milburn, 538 F.2d

1241, 1244 (6th Cir. 1976); Jordan v.

Gilligan, 500 F.2d 701, 709 (6th Cir.

1974), cert. denied, 421 U.S. 991

(1975) .? That assumption, which the

petitioner has adopted, is contrary to

the view of this Court. In Hutto, the

Court made it clear that attorneys'

fees should be classed with costs

rather than with damages. See 437 U.S.

at 690 & n.14, 695-98. In two very

recent cases concerning attorneys'

fees, the Court has reiterated the view

that attorneys' fees are costs, not

2 Moreover, Jordan v. Gilligan is not

directly relevant here, since it did

not concern an award of bad faith

attorneys' fees.

16

damages. See Kentucky v. Graham,

supra, 105 S. Ct. at 3104 & n.7;

Pulliam v. Allen, 466 U.S. 522, 104 S.

Ct. 1970, 1973 & n.4, 1982 (1984).

Accordingly, the decade-old cases from

the Sixth Circuit, 4 which rest on

discredited premises, should not be

used to create a conflict requiring

resolution.

; It is significant that in its

petition for certiorari on a question

involving attorneys' fees, NYSDOT

declines even to mention this Court's

recent rulings in attorneys’ fees cases

and instead relies on decisions that

have nothing to do with fees, such as

Green v. Mansour, U.S. __, 106 S.

Ct. 423 (1985), Atascadero State

Hospital v. Scalon, Vole ~ pon Bs

Ct. 3142 (1985), and Pennhurst State

School & Hospital v. Halderman, 465

U.S. 89 (1984).

4 The main Fourth Circuit case cited

by the petitioner, Hallmark Clinic v.

North Carolina Department of Human

Resources, 519 F.2d 1315 (4th Cir.

1975) is inapposite because the Court

(Footnote Continued)

17

POINT III

THE QUESTION PRESENTED IN THE PETI-

TION ARISES ONLY RARELY AND IS NOT

IMPORTANT ENOUGH TO JUSTIFY GRANTING

THE WRIT

Even if there were a current con-

flict among the circuits, which there

is not, as explained in Point II, this

Court should not grant the writ. The

question presented arises only rarely

and thus is not important enough to

justify granting the writ.

Review on a writ of certiorari is

reserved for cases in which “there are

special and important reasons there-

for." Sup. Ct. R. 17. Among the con-

siderations in determining whether an

issue is sufficiently important to jus-

tify granting the writ are whether a

(Footnote Continued)

there denied fees not on Eleventh

Amendment grounds, but rather because

it found no bad faith. Id. at 1317.

18

Significant number of people are af-

fected by the issue, see, e.g., Lay v.

Williams, 434 U.S. 910 (1977) (White,

J., dissenting from denial of petitions

for writ of certiorari), and whether

Many suits arise involving the issue,

see, e.g., Massachusetts Trustees of

Eastern Gas and Fuel Associates v.

United States, a7? -WsBi a33% asi

(1964).

Mere existence of a conflict among

the circuits is not sufficient to jus-

tify granting the writ. Indeed, the

Court has refused to grant certiorari

in many cases involving issues on which

there was a conflict. See, e.g.,

California Department of Industrial

Relations v. Homemakers, Inc. of Los

Angeles, 423 U.S. 1063, 1063 (1976)

(White, J., dissenting) (petition for a

writ of certiorari denied in case

i9

concerning whether a state statute

requiring employers to pay premium

overtime wages to female, but not male,

employees conflicted with and _ was

preempted by Title VII of the Civil

Rights Act of 1964, a question on which

there was a "Square conflict" among the

circuits); Greco v. Orange Memorial

Hospital Corp., 423 U.S. 1000, 1000-901

(1975) (White, J., dissenting) (peti-

tion denied in case concerning whether

a private hospital with substantial

public funding and control may refuse

to perform elective abortions, an issue

on which there was a "clear" conflict

among the circuits); Bailey v. Wein-

berger, “19°6l ow. S.. 953, 953 (1974)

(White, J., dissenting) (petition de-

nied in case concerning claims for So-

cial Security benefits and presenting

20

an issue on which there was a square

conflict among the circuits).

The instant case is not one on which

the scarce resource of this Court's

time should be spent, since it involves

an unusual situation that is unlikely

to arise frequently in the future. Bad

faith attorneys' fees are rarely awara-

ed against anyone, because the require-

ments for such awards are so

stringent. See, e.g., Nemeroff v.

5

Statutory attorneys' fees, for

which the requirements are less strin-

gent, are more common. Ironically,

in this case, if this Court were to

grant the petition and reverse the

Second Circuit's decision, the burden

of the petitioner's wrongdoing would

fall on the federal government as well

as on the respondents. This would

occur because the Second Circuit ruled

that the Corps was liable for fees

under EAJA, although not under the

common law. Thus, the Corps will be

obliged to pay fees to the respondents

and, if the bad faith award against

(Footnote Continued)

21

Abelson, 620 F.2d 339, 348 (2d Cir.

1980); Browning Debenture Holders' Com-

mittee v. DASA Corp., 560 F.2d 1078,

1088 (2d Cir. 1977). Bad faith attor-

neys' fees against a state are rarer

still and are awarded only in the most

extraordinary circumstances. Most of

the cases cited by the petitioner do

not involve awards of bad faith attor-

neys' fees against ae state. Among

those that do, only two, Hutto v.

Finney, supra, and Gagne v. Maher, su-

pra, were decided since 1976. Where so

few persons and so few cases are af-

fected, this Court should decline to

(Footnote Continued)

NYSDOT were reversed, would not be

entitled to contribution from NYSDOT,

which both the district court and the

Second Circuit found to be the

principal wrongdoer. See 776 F.2d at

391-92: 590 F. Supp. at 1523-25.

grant NYSDOT's petition for a writ of

certiorari.

CONCLUSION

For the reasons stated above, the

Court should deny the petition for a

writ of certiorari.

Respectfully submitted,

STEPHEN L. KASS

Counsel of Record

Jean M. McCarroll

Butzel & Kass

Attorneys for Respondents

45 Rockefeller Plaza

New York, New York 10111

(212) 765-1800

(£82:002]