Opposition Brief — American Lung Ass'n v. Environmental Protection Agency

No. 98-1929

In the Supreme Court of the Gnited States

AMERICAN LUNG ASSOCIATION, ET AL., PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

LOIS J. SCHIFFER

Assistant Attorney General

KAREN L. EGBERT

Attorney

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

\Aes

QUESTION PRESENTED

Whether the court of appeals properly dismissed .

petitioners’ request for attorneys’ fees because peti-

tioners did not achieve any success on the merits of

their claims.

(I)

TABLE OF CONTENTS

Page

a _ 1

ITTY icvineintepecenstrntectigsteseectenseenns . 1

Statement .. pulveneucpiestparesniinane Se 2

ITT snietaiaiesibctiinasiaiiantestnenicinertaesiedetasenianessenescens 4

Ee Se 12

TABLE OF AUTHORITIES

Cases:

Farrar v. Hobby, 506 U.S. 108 (1992) ........cccscessesesessesesseees 5-6

Grano v. Barry, 783 F.2d 1104 (D.C. Cir. 1986) ............ 6

Hensley v. Eckerhart, 461 U.S. 424 (1983) ........ccccccsssesesees 5

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) .... 4,5, 9, 10

Shalala v. Schaefer, 509 U.S. 292 (1998) ........-secssesseesees 6, 9, 10

Sierra Club v. EPA, 769 F.2d 796 (D.C. Cir.

IE cntepciventasceveneesenssceevaseneenesesvemeseesoesveneuonseqersenseasuessss 4,7, 10, 11

Texas State Teachers Ass’n v. Garland Indep. Sch.

ey SE es FE IED ceccrerscnnsensssecinencenincsenmrerenecin 5, 6, 9, 10

Statutes:

Clean Air Act, 42 U.S.C. 7401 et seq.:

MED GREINER, TID cxiessstenerssescnensesvinencsonesevemnenente 2

§ 109(d)(1), 42 U.S.C. T409(d)(1) .......eccececeesesseseseesesessersencsees 2

I ies 4

ee 2, 3, 4, 9, 10

(IIT)

In the Supreme Court of the Anited States

No. 98-1929

AMERICAN LUNG ASSOCIATION, ET AL., PETITIONERS

Vv.

ENVIRONMENTAL PROTECTION AGENCY, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE FEDERAL RESPONDENTS

IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals denying petitioners’

eligibility for an award of costs and attorneys’ fees (Pet.

App. 2-3) is unreported. The opinion of the court of

appeals on the merits remanding the case to the

Environmental Protection Agency (Pet. App. 4-17) is

reported at 134 F.3d 388.

JURISDICTION

The order of the court of appeals denying petitioners’

motion for costs and attorneys’ fees was entered on

December 31, 1998. A petition for rehearing was

denied on March 3, 1999 (Pet. App. 1). The petition for

a writ of certiorari was filed on June 1, 1999. The

jurisdiction of this Court is invoked under 28 U.S.C.

1254(1).

(1)

STATEMENT

Section 307(f) of the Clean Air Act (CAA) provides

that, in any proceeding for judicial review under the

Act, a court “may award costs of litigation (including

reasonable attorney and expert witness fees) whenever

it determines that such award is appropriate” (42

U.S.C. 7607(f)). In the underlying suit in this matter,

petitioners—the American Lung Association, two of its

individual members, and the Environmental Defense

Fund—sought review of the Environmental Protection

Agency (EPA) decision under CAA Section 109(d)(1),

42 U.S.C. 7409(d)(1), not to revise the National Ambient

Air Quality Standards (NAAQS) for sulfur dioxide

(SO,) to add a five-minute standard to protect against

short-term, high-level SO, bursts. Pet. 2. CAA Section

109(d)(1) directs EPA to review and revise the

NAAQS, “as may be appropriate,” every five years (42

U.S.C. 7409(d)(1)). In conducting its review, EPA con-

cluded that short-term peak SO, bursts, occurring

sporadically and from specific sources, did not pose a

broad public health problem warranting revision of the

national standards. Pet. App. 5.

In challenging EPA’s decision, petitioners asserted

that “by failing to establish a five-minute NAAQS cap-

ping SO sub 2 emissions at 0.60 [parts per million], EPA

has violated its statutory responsibility to protect the

public health.” Pet. App. 12. Petitioners also con-

tended that the Administrator’s analysis of the facts

amounted to a conclusive finding that SO, bursts

adversely affect asthmatics’ health, thereby triggering

her duty to promulgate a new NAAQS. 7d. at 13. As

relief, petitioners requested the court of appeals to

vacate EPA’s decision.

3

Noting that petitioners challenged much of the data

the Administrator relied upon, as well as her con- -

clusions based on those data, the court of appeals first

stated that it would not “second-guess EPA in its area

of special expertise.” Pet. App. 12. Therefore, the

court accepted EPA’s “analysis of the exposure studies

in the record, as well as the implication of her analysis.”

Id. at 12-13. Beyond that, the court did not reach the

merits of petitioners’ claims, finding instead that the

Administrator had not adequately explained her de-

cision, ibid., and remanding the case to permit her “to

explain her conclusions more fully.” Jd. at 16-17.

In doing so, the court of appeals stated that it “need

not resolve the debate between the parties over

whether the Clean Air Act authorizes the Administra-

tor to decline to protect an identifiable group of asth-

matics from a known adverse health effect.” Pet. App.

16. The court went on to state that “the Administrator

may well be within her authority to decide that 41,500

or some smaller number of exposed asthmatics do not

amount to a public health problem warranting national

protective regulation” (ibid.). See also id. at 15 (finding

that without further explanation by the Administrator,

the court could not review her decision); id. at 17 (“we

can leave the issue of the scope of her authority for

another day”). The court also determined that it need

not decide the issue of whether the Administrator’s

analysis amounts to a conclusive finding that SO, bursts

adversely affect asthmatics’ health. Jd. at 13.

Pursuant to a Settlement Agreement with EPA,

petitioners did not seek rehearing on the merits of the

decision. They did, however, move for attorneys’ fees

under CAA Section 307(f). EPA opposed the request

for attorneys’ fees on the basis that petitioners had not

achieved a modicum of success on the merits of their

4

claims and that an award of fees was, accordingly, not

appropriate. Finding that petitioners’ request for fees

is controlled by Sierra Club v. EPA, 769 F.2d 796 (D.C.

Cir. 1985), the court of appeals denied the petition for

attorneys’ fees. The court determined that petitioners

“did not meet with ‘a modicum of success on the merits’

because ‘(t]he agency may be able to justify its position

with a simple response containing no reformation of the

challenged portion of the rules.’” Pet. App. 3 (internal

citation omitted).

ARGUMENT

Section 307(f) of the CAA authorizes an award of

costs and attorneys’ fees when the reviewing court

“determines that such [an] award is appropriate.” The

court of appeals in this case determined that no such

award was appropriate since petitioners did not “meet

with ‘a modicum of success on the merits.’” Pet. App. 3.

In exercising the broad statutory discretion afforded it

under Section 307(f), the court simply applied familiar

legal principles to the specific facts in this case. The

decision does not conflict with any decision of this Court

or another court of appeals, and is not of sufficient

importance to warrant review by this Court.

1. Petitioners emphasize that Section 307(f) was not

intended to restrict the award of fees to situations in

which the party seeking fees has prevailed. But, as this

Court emphasized in Ruckelshaus v. Sierra Club, 463

U.S. 680, 686 (1983), Section 307 “does not completely

reject the traditional rule that a fee claimant must

‘prevail’ before it may recover attorneys’ fees.” Noth-

ing in Ruckelshaus, or in any other case cited by

petitioners, suggests that Section 307(f) was intended

to require the court to award fees when it determines

that the applicants’ lack of success on the merits makes

5

such an award inappropriate. Indeed, Ruckelshaus and

almost all the other cases cited by petitioners involved

consideration of the quite different question whether an

award that had been made was authorized by the

statute.”

An award of attorneys’ fees is typically considered

“appropriate” if a plaintiff prevails on any significant

issue in the litigation which achieves some of the bene-

fit the parties sought in bringing suit. Hensley v.

Eckerhart, 461 U.S. 424, 433 (1983). Although a fee

award will be approved even if the party awarded the

fee has not achieved a “major success” in the litigation,

the party still must achieve “some success” on the

merits of its claims for purposes of fee entitlement.

Ruckelshaus, 463 U.S. at 688. In defining what

constitutes the requisite level of success, this Court has

explained that a party must prevail on some aspect of

the merits of its claim in a way that “materially alters

the legal relationship between the parties by modifying

the defendant’s behavior in a way that directly benefits

the plaintiff.” Farrar v. Hobby, 506 U.S. 103, 111-112

The sole exception is Texas State Teachers Ass’n v. Garland

Independent School District, 489 U.S. 782 (1989). In that case, the

district court recognized (id. at 787) that petitioners “had achieved

‘partial success,’” but refused to award attorneys’ fees in a civil

rights case because in the Fifth Circuit “the test for prevailing

party status is whether the plaintiff prevailed on the central issue”

in the case. Ibid. This Court granted certiorari in Garland to

resolve the conflict in the circuits on that test (id. at 784), and

ultimately rejected the Fifth Circuit test. Nevertheless, in

Garland the Court recognized that no fee award would be

appropriate “where the plaintiffs success on a legal claim can be

characterized as purely technical or de minimis,” the finding the

court made in denying fees in the instant case. Jd. at 783.

6

(1992). See also Texas State Teachers Ass'n v. Garland

Indep. Sch. Dist., 489 U.S. 782, 792 (1989).

To make this determination, a court must “focus on

the precise factual/legal condition that the fee claimant

has sought to change, and then determine if the out-

come confers an actual benefit or relief from a burden.”

Grano v. Barry, 783 F.2d 1104, 1108-1109 (D.C. Cir.

1986) (citation omitted). In some circumstances, a re-

mand may qualify a petitioner as a prevailing party for

the purpose of entitlement to attorneys’ fees. Shalala

v. Schaefer, 509 U.S. 292, 297-298 (1993). However, the

petitioner still must demonstrate that it has succeeded

on a significant issue in litigation which achieved some

of the benefit sought in bringing the suit. Jd. at 302.

2. In petitioners’ view, the court of appeals’ refusal

to award attorneys’ fees in this case imposes a “too

stringent ‘prevailing party’ test for purposes of

§ 307(f)” and “would bar fees for a claim that would

have satisfied traditional prevailing party tests.” Pet.

13. This argument overlooks the crucial finding under-

pinning the court of appeals’ denial of attorneys’

fees—that the petitioners did not obtain the “modicum

of success” on the merits (Pet. App. 3) that would make

an award of attorneys’ fees “appropriate.”

a. While the court of appeals remanded the case to

EPA to “permit the Administrator to explain her con-

clusions more fully,” Pet. App. 16, it did not “grant{[]”

the petition for review as petitioners contend (Pet. 3).

The court did not accept, or even resolve, petitioners’

arguments on the merits. Instead, the court concluded

that “[w]Je therefore need not resolve the debate

between the parties over whether the Clean Air Act

authorizes the Administrator to decline to protect an

identifiable group of asthmatics from a known adverse

health effect.” Pet App. 16. See also id. at 15 (stating

a

7

that the court could not review the Administrator’s

decisions without her answers to certain questions).

Likewise, petitioners did not succeed in “winning” a

decision that “rejected EPA’s decision as not meeting

the basic tests for reasoned decision-making.” Pet. 12.

The court of appeals did not find that EPA’s decision

was unreasonable, arbitrary, or capricious. Indeed, as

the court explained, “[t]he agency may be able to justify

its position with a simple response containing no

reformation of the challenged portion of the rules.” Pet.

App. 3 (quoting Sierra Club v. EPA, 769 F.2d 796, 806

(D.C. Cir. 1985)). And while the case was remanded to

“permit the Administrator to explain her conclusions

more fully” (Pet. App. 16), she was not ordered to

undertake a new rulemaking or required to “reconsider

the public health consequences” (Pet. 17) of her decision

as petitioners allege. Indeed, the sole basis for the

court of appeals’ remand decision was an argument not

raised by petitioners—that the EPA Administrator had

failed adequately to explain her actions.

Thus, notwithstanding petitioners’ contrary charac-

terization of the court of appeals’ decision, petitioners

have not obtained the “modicum of success” necessary

for an award of attorneys’ fees and costs. Nor can

petitioners’ effort to cast the remand as a “substantive”

as opposed to “procedural” victory (Pet. 15-16) affect

their entitlement to fees. At bottom, the court of

appeals’ decision does not provide petitioners with any

of the benefit they sought in bringing the suit since

EPA is not required to reconsider or modify the sub-

stance of its decision. And while the remand may

provide petitioners another chance to persuade EPA

that it was wrong and should revise the NAAQS to

provide additional protections to asthmatics, this is the

8

same opportunity available to every member of the

general public.

b. Petitioners assert that when courts review

agency decisions not to act, there is no action to be

vacated or reversed, and that the decision here begins

to define a class of cases in which challenges to agency

inaction “may win all there is to win, but still not

qualify for an award of fees and costs.” Pet. 6. While it

is true that a remand may provide a petitioner all the

relief that a court is authorized to provide in a parti-

cular situation, petitioners here did not “win” a remand

that materially benefits them in any way based on any

claim they raised. The remand was not premised on a

review of the merits of petitioners’ claims, a rejection of

EPA’s rationale, a finding that EPA’s action was incon-

sistent with the Clean Air Act, or any deficiency in the

factual evidence. EPA’s decision not to revise the

NAAQS stands. The Agency is under no obligation to

initiate another rulemaking or even to reexamine its

prior decision. EPA’s only obligation is to provide a

further explanation for the decision it did make. Thus,

rather than defining a class of cases where fees are

denied to parties who “win all there is to win,” the court

of appeals’ decision here simply required these fee

petitioners to meet their burden of demonstrating some

success on the merits of their claims.

c. Petitioners suggest that they obtained “further

relief” that entitles them to attorneys’ fees based on a

post-remand Settlement Agreement they negotiated

with EPA (Pet. 4-5). Under the agreement, which was

not filed in the court of appeals or any other court, EPA

agreed to take final action on the remand no later than

December 2000 and, in exchange, petitioners agreed

not to seek rehearing or petition this Court for a writ of

certiorari from the original decision. Although peti-

9

tioners argued to the court of appeals that the post-

remand Settlement Agreement provided an alternative

basis for fee entitlement, the court plainly did not agree

since it denied the fee request. In any event, in cases

where EPA has agreed or courts have directed EPA to

pay plaintiffs’ attorneys’ fees for obtaining a schedule

for agency action, the Agency has been under a statu-

tory duty to meet a specific deadline. While EPA must

complete the remand directed by the court, the court

did not order the Agency to complete the remand with-

in any particular time frame, and EPA agreed to a

deadline only because petitie-.rs agreed in return that

they would not press further appeals of the court’s

decision.

3. The court of appeals’ denial of fees is fully con-

sistent with CAA Section 307(f) and applicable pre-

cedents of this Court. While Section 307(f) expanded

the class of parties eligible for fee awards, it did not

eliminate the requirement that a petitioner must be at

least “partially prevailing,” achieving “some success”

on the merits. Ruckelshaus v. Sierra Club, 463 U.S. at

688. See also Texas State Teachers Ass’n v. Garland

Indep. Sch. Dist., 489 U.S. at 791-792 (to be prevailing,

a party must succeed on “any significant issue in liti-

gation which achieve[d] some of the benefit * * *

sought in bringing suit”). Because petitioners failed to

meet this standard, the court of appeals’ denial of fees

does not undermine congressional intent in enacting

Section 307(f).

Nor does Shalala v. Schaefer, 509 U.S. 292 (1993),

authorize attorneys’ fees whenever a party obtains a

remand, as petitioners contend (Pet. 10). The Court’s

decision in Shalala rested on the distinction between

two types of remands available under the Social

Security Act—a sentence four remand, which termi-

10

nates the litigation in a judgment for the plaintiff by

reversing the Secretary’s denial of benefits, and a

sentence six remand, which does not. 509 U.S. at 297-

298, 302. As the Court found, a sentence four judgment

reversing the Secretary’s denial of benefits “certainly

meets” the prevailing party requirement that the

plaintiff “has succeeded on any significant issue in

litigation which achieve[d] some of the benefit . . .

sought in bringing suit.” Jbid. (quoting Texas State

Teachers Ass’n v. Garland Indep. Sch. Dist., 489 U.S. at

791-792).

Because the remand here did not provide any benefit

to petitioners or change the legal relationship between

EPA and petitioners, the denial of fees in this case is

not “at odds with” the result in Shalala. Pet. 11.

EPA’s decision not to revise the SO, NAAQS was not

vacated. The Agency is not under any obligation to

promulgate a new, more stringent SO, standard; nor is

it required to reconsider its decision not to revise the

NAAQS. Moreover, the fact that the remand termi-

nated the litigation, with the court of appeals no longer

retaining jurisdiction over the case, does not automati-

cally mean it constitutes a victory for petitioners. The

Court’s award of fees in Shalala was premised not only

on the fact that the sentence four order terminated the

case with the entry of a final judgment, but also on the

ground that it did so in a manner favorable for the

plaintiff, reversing the Secretary’s denial of benefits.

509 U.S. at 301-302. As a result, the court of appeals’

reliance on Sierra Club v. EPA, 769 F.2d 796 (D.C. Cir.

1985), does not constitute error. That case, consistently

with Ruckelshaus and Shalala, merely requires that a

petitioner seeking fees under Section 307(f) must

demonstrate at least some success on the merits—a

11

burden petitioners cannot meet here. See Sierra Club,

769 F.2d at 800.

4. The court of appeals’ decision denying fees pre-

sents no conflict with decisions in other circuits. In the

cases cited by petitioners (Pet. 19-22), attorneys’ fees

were awarded for petitioners’ efforts in achieving a

remand of agency action. In each of those cases,

however, the court reached the merits of petitioners’

claims, finding that the agency action was arbitrary or

capricious or not consistent with the governing statute.

The marked distinction here is that the D.C. Circuit did

not reach the merits of any of petitioners’ claims—a fact

petitioners themselves admit (Pet. 23)—finding that

without further explanation, the court could not

“review [the Administrator’s] decision.” Pet. App. 15.

5. Far from opening a “Pandora’s box” requiring the

court of appeals to speculate concerning the likely out-

come of agency proceedings on remand (Pet. 23-24), the

court’s decision demonstrates a precise focus on the

nature of the petitioners’ claims, what they sought to

achieve in the litigation, and whether the result ob-

tained advanced those goals. Because petitioners did

not meet with a “modicum of success” on the merits of

their litigation, the court properly found attorneys’ fees

were not “appropriate.” And even if EPA, in conduct-

ing proceedings on remand, is confronted with the

hurdles that petitioners allege preclude the Agency

from “simply re-adopting its initial position” (Pet. 23),

these are not hurdles imposed by the court but only

hurdles an agency addresses to meet its obligation to

conduct reasoned decisionmaking.

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor General

LOIS J. SCHIFFER

Assistant Attorney General

KAREN L. EGBERT

Attorney

AUGUST 1999