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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1396%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1986
- **Citation:** 475 U.S. 1084

## Text

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]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1396%3A2. Public record. Not legal advice.