Amicus Curiae Brief — Alyeska Pipeline Service Co. v. Wilderness Society

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IN THE

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Supreme Court of the Unite States ---—-

Ocroser Term, 1974

No. 73-1977

ALYESKA PIPELINE SERVICE,

Petitioner,

NALS TREO TE RTE REN MTR

: v.

WILDERNEss Society, et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

EE SERGE EOS RTE NR

FOR THE DISTRICT OF COLUMBIA CIRCUIT

EPR eR

BRIEF FOR THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC., AS AMICUS CURIAE

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JACK GREENBERG

. James M. NaAszait, III

-—" Eric ScHNAPPER

CuarLes STepuHen Ratston :

10 Columbus Circle :

New York, N. Y. 10019

Attorneys for the NAACP

Legal Defense and

Educational Fund, Inc.

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TABLE OF CONTENTS

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ARGUMENT—

PAGE

1

There Is No Bar to the Award of Counsel Fees

for Work Done by Attorneys Employed by a

f Charitable Organization Under the Private At-

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IN THE

. Supreme Comi of the Waited States

Ocrober TrRM, 1974

No. 73-1977

ALYESKA PIPELINE SERVICE

’

Petitioner,

Vv.

WILDERNEsS Society, ef al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Interest of Amicus Curiae*

The NAACP Legal Defense and Educational Fund, Inc.,

is a non-profit corporation, incorporated under the laws of

the State of New York in 1939. It was formed to assist

Neg to secure their constitutional rights by the pro-

secutfon of lawsuits. Its charter declares that its purposes

include rendering legal aid gratuitously to black persons

suffering injustice by reason of race who are unable, on

account of poverty, to employ legal counsel on their own

* Letters of consent from counsel to the filing of this brief for

the petitioners and the respondents have been filed with the Clerk

of the Court.

2

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behalf. The charter was approved by a New York court,

and authorizes the organization to serve as a legal aid

society and to receive court-awarded counsel fees. The

NAACP Legal Defense and'Educational Fund, Inc. is inde-

pendent of other organizations and is supported by con-

tributions from the public. For many years its attorneys

_ have represented parties in this Court and the lower courts,

and it has participated as amicus curiae in this Court and

other courts, in cases involving many facets of the law.

The Legal Defense Fund has a vital interest in the firm

establishment of the “private attorney general” basis for

the award of counsel fees in public interest litigation, and

its attorneys have brought to this Court a number of cases

dealing with the issue, including Newman v. Piggie Park

Enterprises, 390 U.S. 400 (1968); Northcross v. Board of

Education of Memphis City Schools, 412 U.S. 427 (1973);

Bradley v. School Board of the City of Richmond, 416 U.S.

696 (1974) ; and Bridgeport Guardians, Inc. v. Bridgeport

Civil Service Commission, No. 74-543 (petition for writ of

certiorari pending). In the last ten years, since the passage

of the first attorney’s fees provisions in Title II and Title

VII of the Civil Rights Act of 1964, the Legal Defense

Fund has been able to expand significantly the scope of its

program. The recovery of attorneys’ fees for work done

by lawyers employed by the Fund in cases involving em-

ployment, public accommodations, school desegregation,

fair housing, voting rights, and other constitutional and

statutory rights, provides a vitally important resource that

helps to make the Fund’s. work possible. Although peti-

tione this case disclaims any application of its argu-

ments to, civil rights cases, and does not challenge the

validity of the private attorney general rule itself, its

final argument, that counsel fees cannot be awarded to

attorneys: employed by charitable organizations would also

CIN a A tl a Ne 2 NTS BND DARROW RRR SANE AD RR AA

bar the legal Defense Fund from such awards. Thus, the

Fund has a direct interest in the outeome of this case.

ARGUMEN

There Is No Bar to the Awarg of Counsel Fees for

Work Done by Attorneys Employed by a Charitable

Organization Under the Private Attorneys General

Rule.

a“

Petitioner urges, “in the alternative, that the court below

lacked discretion to award counsel fees in the instant case

‘because the plaintiffs are charitable organizations estab-

lished to protect the environment, and because plaintiffs’

counsel were provided by other charitable organizations

established to provide free legal counsel in cases such as

this.

This contention is not a novel one; it has been considered

and rejected by five courts of appeals. Jordan v. Fusari,

496 F.2d 646, 649 (2d Cir. 1974) ; Brandenburger v. Thomp-

son, 494 F.2d 885, 889 (9th Cir. 1974) ; Fairley v. Patterson,

493 F.2d 598, 606-07 (5th Cir. 1974); Natural Resources

Defense Council v. Environmental Protection Agency, 484

F.2d 1331, 1338 n. 7 (1st Cir. 1973); Wilderness Society v.

Morton, 495 F.2d 1026 (D.C. Cir. 1974), cert. granted sub

nom., Alyeska Pipeline Service v. Wilderness Society, No.

73-1977. See also, Lea v. Cone Mills Corp., 438 F.2d 86, 88

(4th Cir. 1971).1 Only last term, this Court affirmed an

?

1 Three district courts have also rejected this argument. Clark

v. American Marine Corp., 320 F. Supp. 709, 711 (E.D. La. 1970) ;

La Raza Unida v. Volpe, 57 F.R.D. 94, 98 n. 6 (N.D. Calif. 1972) ;

Stephens v. Dobs, Inc., 373 F. Supp. 618, 621 (E.D. N. Car. 1974) ;

Two district court opinions denying counsel fees on this ground

were reversed by the Fifth Circuit. See, Miller v. Amusement

Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970), reversing an un-

reported decision in the Eastern District of Louisiana (West, J.) ;

and Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974), reversing

an unreported decision in the Southern District of Mississippi

(Cox, J.). | :

award of counsel fees to a charitable organization and pri-

vate counsel associated with it. Bradley v. School Board of

the City of Richmond, 416 U.S. 696 (1974).

Petitioner urges first that an award of counsel fees is

impermissible in this case because the plaintiffs are chari-

table organizations whose goals include the protection of

the environment through litigation. This argument. mis-

conceives the purpose of a private attorney general rule.

That rule was not fashioned to give potential plaintiffs a

greater financial interest in litigation; any fees awarded

are paid, not to the party itself, but to its counsel. The

Wilderness Society interest in clean air or the protection

of endangered species is certainly no greater than the in-

terest of a black child in attending an integrated ‘school.

See, Sierra Club v. Morton, 405 U.S. 727 (1972). Counsel

fees are necessary to make possible the prosecution of

litigation such as this where there is no realistic chance

of monetary damages out of which a fee might be paid. See,

Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400,

402 (1968). Petitioner does not suggest that charitable

organizations in general, or the Wilderness Society in.

particular, have such vast resources as to be able to hire

counsel to bring every public interest law suit in which

they have a substantial interest. On the contrary, it is

undisputed that, even in the instant case, plaintiffs were

represented not by hired counsel, but by attorneys who

undertook to do so without charge.

Petitioner argues in the alternative that counsel fees

are inappropriate because in the instant case plaintiffs’

counsel were provided by another charitable organization,

the Center for Law and Social Policy. An award of counsel -

fees is not inappropriate merely because an organization

such as the Center is interested in providing counsel in

cases such as this. The practical problem confronting such

5

an organization is the same as that which confronts private

counsel; it has severely limited resources available to ex-

pend on non-fee generating litigation. Attorneys’ fees are

provided, not merely to encourage such organizations to

provide counsel in litigation of public importance, but also

to augment their ability to do so. The fact that an organiza-

_tion, like a private attorney, might undertake to support

a few such cases out of its own resources does not militate

against awarding counsel fees to permit it to undertake

more.

The ancillary benefits of the private attorney general

rule are equally applicable to litigation involving charitable

organizations. The rule encourages counsel to pick out

from among possible pro bono activities those matters of ©

significant importance. Thus, such an organization has an

incentive to devote its limited resources to litigation affect-

ing large numbers of people, not merely a handful of in-

dividual members. Ordinarily, a potential plaintiff, or an

unpaid counsel, would be reluctant to undertake an action

against multi-million dollar plaintiffs that can afford to

wear them down through protractedlitigation; the private

attorney general rule tends to mitigate this problem in

litigation of public importance. |

Petitioner invites the Court to speculate that the existing

incentives and resources available to charitable organiza-

tions are such as to make unnecessary the additional in-

centives and resources provided by the private attorney —

general rule. In fact, the handful of such organizations

that exist can support only a small number of cases, com-

pared to the many thousands of employers, industrial

plants, or school districts that may be involved in violations

of the law. The practical experience of these organizations

is that they handle no more than a fraction of the most

important problems needing attention. It would be in-

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6

appropriate for this Court to restrict the award of counsel

fees to charitable organizations based on conjecture as to

how much money these organizations can raise through

contributions, or foundation grants, how much litigation

those funds can effectively support, and how those factors

will be affected in the future by such imponderables as

inflation, recession, and the fluctuations of the stock market.

See, La Raza Unida v. Volpe, 57 F.R.D. 94, 98 n.6 (N.D.

Calif. 1972).

The vitality of the private attorney general rule «s

an aid to civil rights litigation would be largely vitiated

by the limitations urged by Petitioner. Despite the ex-

press Congressional sauction for counsel fees in such areas

as employment diserimination, school desegregation, public

accommodatiers, and housing, and notwithstanding this

Court’s liberal construction of those provisions,’? the bulk

of the litigation in such cases has continued to be’ brought

by, or with the support of, a handful of civil rights

organizations. The same is true. of ciyil rights litigation

failing under the equitable private attorney general rule.

This pattern reflects the unwillingness of many attorneys,

especially in the South, to undertake such litigation, the

inability of most small practitioners to absorb the sub-

stantial day-to-day costs of such cases, and the essential

expertise of those organizations. Not coincidentally, most.

of the cases in which defendants have opposed an award

of counsel fees on the ground now urged by Petitioner have

been civil rights cases brought by either the NAACP

Legal Defense Fund or the Lawyers Committee for Civil

Rights Under Law.* To a substantial extent, such organiza-

2Newman v. Piggie Park Enterprises, supra; Northeross v.

Board of Education of Memphis City Schools, 412 U.S. 427 (1973).

>See, Fairley v. Patterson, supra, (lLawyers’ Committee) ;”

Miller v. Amusement Enterpriscs, supra, (Legal Defense Fund) ;

°

7

tions have committed themselves to the support of partic-

ular cases and a volume of litigation on the assumption

that they will be eligible for awards of counsel fees in the

same circumstances as would private counsel.

Finally, the rule urged by Petitioner raises constitutional

problems of considerable magnitude,” A citizen aggrieved

by a violation of his legal rights may often conclude that

the most efficacious method of vindicating those rights is

not through individual litigation, but through membership

in an organization which engages in such litigation for or

on behalf of its members. As this Court noted in N.A.A.C.P.

v. Bution, 371 U.S. 415, 429 (1963) : /

In the context of NAACP objectives, litigation is not

a technique of resolving private differences; it is a

means for achieving the lawful objectives of equality

of treatment by all govérnment, federal, state and local,

for the members of the Negro community in this

country. It is thus a form of political expression.

To cut off the possibility of counsel fees, and thus in many

cases the possibility of obtaining the assistance of an

attorney, merely because individuals seek to act through

membership in such organizations, would impose an imper-

missible burden on the exercise of First Amendment rights.

Similarly, an individual may legitimately prefer to be

represented by counsel employed by or associated with a

charitable organization. Such counsel may have greater

expertise, a keener interest in the case, or a greater im-

munity from the pressures often brought to bear on counsel

Lea v. Cone Mills, supra, (Legal Defense Fund); Clark v. Amer-

tcan Marine, supra, (legal Defense Fund); Stephens v. Dobbs,

Inc., supra, (Legal Defense Fund) ; Thompson v. Madison County

Board of Education, 496 F.2d 682 (Sth Cir. 1974) (Lawyers’ Com-

mittee) ; Johnson v. Georgia Highway oe 488 F.2d 714 (5th

Cir. 1974) (Legal Defense Fund).

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8

handling unpopular cases. To restrict an individual’s

ability to obtain such representation by limiting awards .

of counsel fees to attorneys the individual does not want or .

trust would present an unwarranted interference with the.

individual’s right to the assistance of counsel of his or her

choice. See, Sanders v. Russell, 401 F.2d 241, 244-47 (5th

Cir. 1968); Fairley v. Patterson, 493 F.2d 598, 607 n. 14

(5th Cir. 1974). Thus, the acceptance of Petitioners’ argu-

ment would result in, in practical effect, the undermining

of the entire purpose of the private attorney general rule.

Mi A MADE F mania PA Me 0 ek at AM 0 Oat BT Sl OP vie ton

CONCLUSION

For the foregoing reasons, the decision of the court

below should be affirmed.‘

Respectfully submitted,

——

JACK GREENBERG |

James M. Masrit, III

Eric ScHNAPPER

CuarLes STEPHEN RaLston

10 Columbus Circle

New York, N. Y. 10019

Attorneys for the NAACP

Legal Defense and

Educational Fund, Inc.

* Amicus feels that it should call to the Court’s attention an

alternative basis for upholding an award of counsel fees to the

* Respondents, although one that would not result in their being

assessed against the Petitioner. Both the parties and the court of

appeals assumed throughout this aspect of the litigation that the

United States is not liable for an award of counsel fees because of

sovereign immunity or the provisions of 28 U.S.C. § 2412. The

correctness of this assumption is challenged in Pyramid Lake

Piute Tribe v. Morton, No, 74-342. That limitation applies only to

.an award of counsel fees directly from the Treasury, and would

not bear on the propriety of such an award from a fund created by

private litigation and payable to the United States. See, Sprague

v. Ticonic National Bank, 307 U.S. 161 (1939). In the instant

case, plaintiffs sueceeded in compelling petitioner to seek approval

of the Trans-Alaska Pipeline from Congress, and Congress in turn

required as a condition of that approval that Petitioner pay to the .

United States a sum equal to the fair market value of the right of

way on which the pipeline is constructed. This sum will doubtless

involve several millions of dollars, and would not have been pay-

able to the United States had not the plaintiffs successfully prose-

cuted the instant litigation. Amicus would suggest that plaintiffs

eounsei fee might properly be deducted from this sum, and if this

were done, the Court need not reach the issues. presented by

Petitioner.