Reply Brief — Environmental Protection Agency v. Sierra Club

,

No. 03-509 } OFFICE OF THE CLERK

Jn the Supreme Court of the Gnited States

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

PETITIONERS

Vv.

SIERRA CLUB, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

THEODORE B. OLSON

Solicitor General

Counsel of Record

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

Page

A. The court of appeals erroneously ruled that

this Court’s decisions authorize the award

of attorney’s fees to parties who have not

prevailed on the merits of their claims .................06 <2

B. This Court should resolve the issue even in

the absence of a conflict among the courts of

TD sesstsncessaiisendsanscinitainedlttabahancnsalitiniasinbaiiencicaanien 5

C. Principles of stare decisis support review

OE I se rcieiesetevenneiciniicemntenensntninniiiiinne j

D. This case presents an important issue war-

Pair CIS COMIC OPO VIGW cesissccnrssovsesesesssesenserscoavesnes 7

TABLE OF AUTHORITIES

Cases:

Buckhannon Bd. & Care Home, Inc. v. West

Virginia Dep’t of Health & Human Res., 532 U.S.

ID sesiasseisssstasebseiiscenidiietitciboselaaniabiioaniahtaiainioiaitats 1,5, 6,7

Came G. FONG, BIG UIST CGS) ccccicescessisncnsesevscncesscssessenie 4

Rivet v. Regions Bank, 522 U.S. 470 (1998) ........cssesceseees 4

Ruckelshaus v. Sierra Club, 463 U.S. 680 (1983) ..........+. 2%.

4, 5,6,

Statute:

Clean Air Act § 307(f), 42 U.S.C. T607(f) .......seeseseees 1-2, 3, 4,5

In the Supreme Court of the Anited States

No. 03-509

ENVIRONMENTAL PROTECTION AGENCY, ET AL.,

PETITIONERS

VU.

SIERRA CLUB, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

REPLY BRIEF FOR THE PETITIONERS

This Court ruled in Buckhannon Board & Care

Home, Inc. v. West Virginia Department of Health &

Human Resources, 532 U.S. 598, 610 (2001), that a

litigant cannot obtain attorney’s fees under “prevailing

party” fee-shifting statutes on the theory that the

litigant’s lawsuit was the “catalyst” for a government

agency’s change in position. This case poses the

question whether a litigant may nevertheless invoke

the catalyst theory to obtain attorneys’ fees from a

government agency under federal statutes that

authorize the award of attorney’s fees when “appro-

priate.” See, e.g., Clean Air Act (CAA) § 307(f), 42

(1)

2

U.S.C. 7607(f). That question, which arises under more

than a dozen federal statutes, see Ruckelshaus v.

Sierra Club, 463 U.S. 680, 682 n.1 (1983), presents the

most important attorney’s fee issue currently before

the federal courts. Respondents present four argu-

ments why the Court should not decide the question.

None of those arguments is persuasive. To the

contrary, those arguments highlight why this Court

should decide the issue now.

A. The Court Of Appeals Erroneously Ruled That This

Court’s Decisions Authorize The Award Of Attorney’s

Fees To Parties Who Have Not Prevailed On The

Merits Of Their Claims

Respondents argue that the court of appeals properly

awarded attorney’s fees despite the absence of court- |

ordered relief because this Court’s decision in Ruckel-

shaus requires that result (Br. in Opp. 4-6) and because

this Court’s rejection of the catalyst theory in Buck-

hannon is inapposite (id. at 6-7). As_explained in the

government’s petition (at 11-19), the court of appeals’

decision is incorrect. Respondents’ specific contentions

in support of the court’s decision are mistaken.

As the government has already explained (Pet. 11-

19), the court of appeals erroneously construed Section

307(f) to authorize catalyst-based fee awards by relying

on obiter dicta in this Court’s Ruckelshaus decision.

Respondents compound that error by characterizing

that dicta as the Court’s holding. They inaccurately

claim:

Ruckelshaus held that Congress used the “when-

ever appropriate” language in § 307(f) specifically to

extend fee awards “to suits that forced defendants

to abandon illegal conduct, although without a

formal court order.” 463 U.S. at 686 n.8.

Ee

Br. in Opp. 4 (emphasis added by respondents). The

Court stated its actual holding as follows:

We conclude, therefore, that the language and

legislative history of § 307(f) do not support respon-

dents’ argument that the section was intended as a

radical departure from established principles re-

quiring that a fee claimant attain some success on

the merits before it may receive an award of fees.

Instead, we are persuaded that if Congress intended

such a novel result—which would require federal

courts to make sensitive, difficult, and ultimately

highly subjective determinations—it would have

said so in far plainer language than that employed

here. Hence, we hold that, absent some degree of

success on the merits by the claimant, it is not

“appropriate” for a federal court to award

attorney’s fees under § 307(f).

Ruckelshaus, 463 U.S. at 693-694 (emphasis added).

The passages from footnote eight that respondents cite

as holding, as well as similar passages they cite else-

where (Br. in Opp. 5-6), are simply dicta, unnecessary

to the Court’s ultimate ruling, that address the Ruckel-

shaus plaintiffs’ characterization of the Clean Air Act’s

legislative history. See 463 U.S. at 686-691.’

Ruckelshaus did not involve a catalyst-based fee

award, and the Court’s holding did not depend on the

passages that respondents cite. As the Court unam-

biguously stated:

1 See, eg., Ruckelshaus, 463 U.S. at 687-688 (discussing “the

meaning of [House Report No. 294]”); id. at 689-690 (discussing a

“House Report’s statement”).

4

We conclude that the language of the section, read in

the light of the historic principles of fee-shifting in

this and other countries, requires the conclusion

that some success on the merits be obtained before a

party becomes eligible for a fee award under §

307(f).

463 U.S. at 682 (emphasis added). The Court discussed

Section 307(f)’s legislative history because the Ruckel-

shaus plaintiffs “devot[ed] their principal attention” to

that subject. Jd. at 686. The Court, however, did not

need to address it because “[a] statute’s legislative

history cannot supply a waiver that does not appear

clearly in any statutory text.” E.g., Lane v. Pena, 518

U.S. 187, 192 (1996). Respondents are accordingly

wrong in contending that the passages they cite are

anything more than nondispositive dicta. Br. in Opp. 4.

See Rivet v. Regions Bank, 522 U.S. 470, 477-478

(1998).°

Respondents’ contention that Buckhannnon is

irrelevant is also mistaken. The Court’s decision in

Ruckelshaus plainly requires that a party seeking fees

under a “when appropriate” fee-shifting statute must at

least partially “prevail,” in the sense that the party

achieves “some degree of success on the merits,” in

order to receive a fee award. See 463 U.S. at 682, 686,

688, 694. Buckhannon squarely addresses what it

2 Respondents contend (Br. in Opp. 6, 9-10) that the govern-

ment’s brief in Ruckelshaus contains statements that can be read

to support application of the catalyst theory under “when appro-

priate” fee-shifting statutes. The government’s statements in a 20-

year-old brief that predated this Court’s decision in Buckhannon

are not, however, dispositive on an issue that this Court did not

reach.

5

means to “prevail.” A “prevailing party” is “one who

has been awarded some relief by the court.” 532 U.S. at

603. A party does not “prevail,” in the legal sense, if

the party has “failed to secure a judgment on the merits

or a court-ordered consent decree.” Jd. at 600.

The Court’s decision in Buckhannon is, accordingly,

highly relevant. It establishes that, to satisfy Ruckel-

shaus’s requirement of “some degree of success on the

merits,” 463 U.S. at 694, the party must secure, at the

least, some measure of judicial relief. The Court in

Ruckelshaus plainly used the term “partially prevailing

party” in that sense. See id. at 686 (Section 307(f) “does

not completely reject the traditional rule that a fee

claimant must ‘prevail’ before it may recover attorney’s

fees”). See Pet. 14-15.

Respondents’ mistaken arguments in defense of the

court of appeals’ decision are instructive because they

highlight that the dispute whether “when appropriate”

fee statutes allow catalyst-based fee awards depends on

the proper reconciliation of this Court’s holdings in

Buckhannon and Ruckelshaus. As the court of appeals

acknowledged, that task falls squarely within this

Court’s province. See Pet. App. 15a. Because only this

Court can answer that question authoritatively, the

Court should resolve that issue in this case, which

squarely presents the question in a straightforward and

cleanly presented context.

B. This Court Should Resolve The Issue Even In The

Absence Of A Conflict Among the Courts Of Appeals

Respondents argue (Br. in Opp. 7-8) that this Court’s

review is unnecessary because ihe court of appeals’

decision does not conflict with any decision of another

court of appeals. The government, however, has not

relied on any such conflict. Rather, the government

6

submits that this Court’s review is needed because, as

described above, the court of appeals’ decision conflicts

with this Court’s clear teachings in Buckhannon and

Ruckelshaus and presents an important issue that war-

rants resolution at this time. See Pet. 19-23.

The need for this Court’s review is particularly clear

because the court of appeals’ decision conflicts with the

approach that this Court has prescribed for construing

fee-shifting statutes. The court of appeals rejected

“EPA’s invitation to apply standard tools of statutory

construction, including Ruckelshaus’s presumptions

against inferring departures from the American Rule

and waivers of sovereign immunity.” Pet. App. 10a-11a.

It made no effort to determine whether Section 307(f)

of the Clean Air Act provides “explicit statutory

authority” for awarding fees based on the catalyst

theory. Buckhannon, 532 U.S. at 602-603. And it did

not treat Section 307(f) as a partial waiver of sovereign

immunity that “must ve ‘construed strictly in favor of

the sovereign, . . . and not ‘enlarge[d] beyond what

the language requires.’” Ruckelshaus, 463 U.S. at 685

(citations omitted). The court of appeals expressly

dispensed with those required inquiries on account

of its misplaced reliance on obiter dictum. Pet. App.

19a-1la.

Here, as in Ruckelskaus itself, the issue is suffi-

ciently important to warrant this Court’s resolution

without awaiting for a conflict to develop among the

courts of appeals. Indeed, respondents’ rote focus on

the absence of a square conflict among the courts of

appeals highlights the absence of good reason to await

the development of such a conflict. As the court of

appeals itself recognized, the question whether Section

307(f) authorizes catalyst-based awards turns on the

proper reconciliation of this Court’s decisions in Buck-

7

hannon and Ruckelshaus. Pet. App. 5a-6a. Further

litigation in the courts of appeals is unlikely to provide

additional insight on that purely legal question, which

turns on what significance the Court itself gives to

footnote eight of the Ruckelshaus decision. As the

court of appeals stated, reconciling Buckhannon and

Ruckelshaus “is a matter for the Supreme Court, not

us.” Id. at 15a.

C. Principles Of Stare Decisis Support Review Of This

Case

Respondents contend that “principles of stare decisis

strongly militate against granting certiorari.” Br. in

Opp. 9 (capitalization altered). The exact opposite is

true. This Court’s decision in Buckhannon emphasizes

the danger of lower courts neglecting the Court’s “prior

holdings,” 532 U.S. at 605, in favor of “misleading

dicta,” id. at 621 (Scalia, J., concurring). The lower

court’s rejection of that guidance could hardly be more

apparent. As noted above, the court of appeals ex-

pressly declined “to apply standard tools of statutory

construction, including Ruckelshaus’s presumptions

against inferring departures from the American Rule

and waivers of sovereign immunity,” Pet. App. 10a, 11a,

in favor of what the court itself acknowledged was

“dicta,” id. at lla. Unless this Court acts, the court of

appeals’ decision may well create the same situation

that arose in Buckhannon, where non-authoritative

dicta “nurtured and preserved” a “near-unanimous,”

but mistaken, interpretation of federal law. See 532

U.S. at 621-622 (Scalia, J., concurring).

D. This ase Presents An Important Issue Warranting

This Court’s Review

Respondents contend that this case does not raise

any “matters of pressing or substantial concern war-

8

ranting this Court’s attention.” Br. in Opp. 11. They

simply ignore the obvious significance of this case. The

court of appeals’ decision is likely to control the appli-

cation of at least a dozen federal “when appropriate”

fee-shifting statutes within the District of Columbia

Circuit, where those claims frequently arise. See Pet.

20-21. At the same time that the government pays out

unauthorized fees in that circuit, it must continue to

litigate whether catalyst-based awards are available in

other circuits. That litigation will burden the courts

with time-consuming and wasteful inquiries, and it will

sustain an existing conflict among the courts of appeals

over the specific standard for determining when fees

are available under the catalyst theory. See Pet. 21-22.

This Court has a strong interest in sparing the lower

courts the burdens of unnecessary attorney’s fees

litigation and preventing unauthorized charges against

the public fise. That interest is at its zenith here where

the issue ultimately depends on an authoritative

reconciliation of the Court’s own decisions.

* * * * *

For the foregoing reasons and those stated in the

petition for a writ of certiorari, the petition for a writ of

certiorari should be granted.

Respectfully submitted.

THEODORE B. OLSON

Solicitor General

DECEMBER 2003