ANNE M. GORSUCH, ADMINISTRATOR, ENVIRONMENTAL PROTECTION AGENCY, PETITIONER V. SIERRA CLUB AND ENVIRONMENTAL DEFENSE FUND No. 82-242 In the Supreme Court of the United States October Term, 1982 The Solicitor General, on behalf of the Administrator of the Environmental Protection Agency, petitions for a writ of certiorari to review the decision of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit TABLE OF CONTENTS Opinions Below Jurisdiction Statute involved Statement Reasons for granting the petition Conclusion Appendix A Appendix B Appendix C Appendix D OPINIONS BELOW The opinion of the court of appeals (App. A, infra, 1a-22a) holding the Administrator liable for attorneys' fees and costs is reported at 672 F.2d 33. The opinion of the court of appeals (App. B, infra, 23a-38a) determining the amount of those fees and costs is not yet officially reported. JURISDICTION The judgment order of the court of appeals (App. C, infra, 39a-40a) was entered on July 16, 1982. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTE INVOLVED Section 307(f) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7607(f), provides in pertinent part as follows: In any judicial proceeding under this section, the court may award costs of litigation (including reasonable attorney and expert witness fees) whenever it determines that such award is appropriate. QUESTION PRESENTED Whether it was "appropriate," within the meaning of Section 307(f) of the Clean Air Act, 42 U.S.C. 7607(f), to award over $90,000 in attorneys' fees and costs to parties who failed to prevail on any aspect of their challenge to regulations promulgated by the Administrator of the Environmental Protection Agency. /*/ STATEMENT Following a totally unsuccessful challenge to regulations promulgated by the Environmental Protection Agency (EPA), respondents Sierra Club and Environmental Defense Fund (EDF) sought an award of attorneys' fees and costs against the government under Section 307(f) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7607(f). Although respondents had not prevailed on any issue in the litigation, the court of appeals determined that they were entitled to fees and costs. Before discussing the court's ruling on attorneys' fees, we briefly describe the underlying merits litigation. 1. Section 111 of the Clean Air Act, 42 U.S.C. (Supp. IV) 7411, requires the EPA to set performance standards limiting emissions from new or modified air pollution sources that may be reasonably anticipated to endanger the public health or welfare. In 1979, EPA promulgated revised new source performance standards for coal-fired generators capable of firing more than 250 million British thermal units (MBtu) per hour. /1/ The performance standards limited sulfur dioxide (SO(2)) emissions to a maximum of 1.2 pounds per MBtu. In addition, powerplants with potential, i.e., uncontrolled, SO(2) emissions greater than 0.60 pounds per MBtu were required to reduce such emissions by 90%; powerplants with potential emissions less than 0.60 pounds of SO(2) per MBtu were required to reduce them by no less than 70%. The Sierra Club, EDF, and industry organizations filed petitions for review of the new source performance standards in the United States Court of Appeals for the District of Columbia Circuit. /2/ Sierra Club challenged EPA's action on three grounds: (1) that EPA lacked statutory authority to adopt a "variable" standard for SO(2) emissions, i.e., a standard that allowed percentage reductions in emissions ranging from 70% to 90% (Sierra Club v. Costle, 657 F.2d 298, 316 (D.C. Cir. 1981)); (2) that EPA's standard was not supported by the rulemaking record (id. at 316-317); and (3) that EPA failed adequately to apprise the public of its intention to adopt a variable reduction strategy, thereby depriving the public of a fair opportunity to comment on the adoption of a variable standard in the final rule (id. at 317-318). EDF challenged the performance standards on only one ground -- the alleged procedural impropriety of "ex parte contacts." EDF asserted that a more stringent SO(2) emission ceiling was attainable and would have been adopted but for an "ex parte blitz" on EPA after the close of the comment period, during which EPA was pressured not to adopt a more stringent standard (id. at 386). On April 29, 1981, the court of appeals rendered its decision on the merits. Sierra Club v. Costle, supra, 657 F.2d 298. The court rejected all of Sierra Club's claims. First, it concluded that EPA had ample statutory authority to adopt a variable standard (657 F.2d at 318-322). Second, it rejected Sierra Club's charge that the variable standard was without basis in the record. After reviewing the technical background for the standard, the factors considered by EPA in adopting the standard, and examining the agency's stated rationale, the court held that EPA's action was reasonable (id. at 322-352). Finally, the court rebuffed Sierra Club's claim that EPA's adoption of a variable standard was procedurally defective. The court found that the public in general and Sierra Club in particular had fair notice of and opportunity to comment on the agency's intention to adopt a variable standard (id. at 353-356). EDF fared no better on its claim. The court separated the allegedly improper ex parte contacts into two categories for analytical purposes: (1) written comments submitted after the close of the comment period; and (2) meetings after the close of the comment period with the President and heads of other Executive Branch agencies, congressional representatives, and private parties (657 F.2d at 386-387). With respect to written comments received after the close of the comment period, the court held that nothing on the face of the Clean Air Act prohibited the agency from receiving and considering such materials as long as they were placed in the agency's rulemaking docket. All such materials had in fact been properly docketed in this case (id. at 397-400). With respect to the meetings, the court again noted that they were not prohibited by the Act; indeed, the court thought that such meetings were desirable given the importance of openness and accessibility on the part of public officials (657 F.2d at 400-401). The court further noted that summaries of seven of the nine contested meetings had been placed in the rulemaking docket, and held that this fully satisfied all statutory and due process requirements (id. at 386-410). A summary of one of the remaining two meetings was omitted from the docket through inadvertence. The court found that this was an honest error and that, in any event, the particular meeting was not of the type required to be entered on the rulemaking docket (id. at 404). The final meeting included the President and members of the White House staff. The court expressly recognized the President's constitutional authority to control and supervise executive policymaking and was hesitant to fashion any new rule that would impair the President's ability to fullfill this role (id. at 405-- 407). In this particular instance, the court found that since EPA did not base the rule on any information or data arising from the meeting, there was no justification for requiring it to be docketed on the rulemaking record (id. at 407). Finally, the court noted that it could find no evidence of impermissible congressional pressure on EPA arising out of two meetings (both entered on the rulemaking docket) that the Administrator had with West Virginia Senator Robert Byrd. EDF's claim in this regard was rejected because it failed to present any evidence that Senator Byrd had sought to influence the rulemaking by injecting extraneous considerations into the agency's decisionmaking processes (657 F.2d at 408-410). 2. After losing every issue on the merits, Sierra Club and EDF, relying on Section 307(f) of the Clean Air Act, filed motions seeking awards of attorneys' fees and costs. Although settlement discussions were initiated between respondents and the Justice Department lawyer then assigned to the litigation, no agreement was ever consummated because the Assistant Attorney General in charge of the matter declined to approve settlement. Thereafter, the fee requests were fully briefed by respondents and the government. Sierra Club and EDF both argued that an award of fees and costs was "appropriate" because they had conferred certain public benefits by bringing their unsuccessful lawsuits. Specifically, they contended that they had advanced the purposes of the Clean Air Act by enabling the court of appeals to construe the provisions of Section 111 of the Act, thus providing future guidance to EPA and the public as to how that provision should be interpreted and implemented. EDF also argued separately that litigation of the ex parte contacts issue had clarified the "rules of the game" as to contacts with agency officials during informal rulemakings. The government opposed any fee award whatsoever because respondents not only lost the litigation but failed to advance the purposes of the Clean Air Act in any concrete or tangible fashion. On February 5, 1982, the court of appeals issued an opinion rejecting all the government's arguments in opposition to the motions for fees (App. A, infra, 1a-22a). /3/ After examining the text of Section 307(f) and its legislative history, the court concluded that an award of fees was "appropriate" where the party seeking fees had "'substantially contributed' to the goals of the Clean Air Act" (App. A, infra, 20a n.10), whether or not the litigation was actually successful. The court further concluded that the express goals of the Clean Air Act included "prompt resolution of serious questions of statutory interpretation" (id. at 18a). A litigant could satisfy this goal, the court ruled, by making exemplary presentations on important, complex and novel issues (id. at 12a-13a, 18a-19a). The court then suggested that the parties resume their negotiations over the proper amount of fees to be awarded, and ordered a status report on the negotiations within three months. In May 1982, the parties advised the court that their negotiations had been unsuccessful. Thereafter, Sierra Club and EDF filed amended fee requests encompassing their work on the case-in-chief and on the attorneys' fee dispute. On July 16, 1982, the court of appeals issued its final opinion (App. B, infra, 23a-38a). A majority of the panel determined that Sierra Club was entitled to an award of $44,715 in fees and $644.60 in expenses, and that EDF was entitled to an award of $45,874.80 in fees (App. C, infra, 39a-40a). Although the court made modest reductions in the number of compensable hours claimed by respondents, the majority awarded fees at the hourly rates respondents had requested and rejected the government's argument that the awards should be reduced to reflect respondents' total lack of success on the merits (App. B, infra, 26a-30a, 32a-35a). The majority stated that any such reduction could not be squared with "the Clean Air Act's overriding purpose of encouraging constructive legal challenges * * * " (id. at 30a). The court did, however, agree with the government that because of their failure to prevail respondents were not entitled to any "bonus" in addition to their "lodestar" fees (determined by multiplying the hours reasonably expended by a reasonable hourly rate) (id. at 30a-31a). Judge Robb dissented in part, asserting that a reduction in respondents' lodestar fees was "appropriate" because respondents had "batted zero" and "(i)f counsel were private practitioners their clients might well complain that they could have lost the case for less money" (id. at 36a-37a). REASONS FOR GRANTING THE PETITION In holding the government liable for attorneys' fees incurred by litigants who do not prevail in any respect, the court of appeals has departed from accepted notions of fee-shifting, and has established a precedent that threatens to impose substantial burdens on the federal courts, administrative agencies and the Justice Department by encouraging unproductive, expensive and time-consuming litigation. /4/ The court's decision, furthermore, disregards both settled principles of sovereign immunity and the congressional intent behind Section 307(f) of the Clean Air Act. 1. The court adopted a seemingly benign standard in this case, ruling that an award of attorneys' fees would be "appropriate" whenever a litigant "substantially contributed" to the goals of the Clean Air Act (App. A, infra, 20a n.10). There can be little dispute, moreover, that litigation resulting in proper implementation of the statute substantially contributes to Congress' goals. Where the court went fundamentally astray, however, was in its equation of proper implementation of the Clean Air Act with mere judicial "interpretation" of the statute (id. at 5a n.3, 8a, 11a, 18a). It is clear that Congress intended to hold the government liable for attorneys' fees in actions that spur proper implementation of the Act by correcting administrative errors (see pages 16-17, infra). But it is equally clear that judicial interpretation of the Act is not in itself a goal of the statute. Unless one views litigation as desirable for its own sake, it is difficult to comprehend how implementation of the Act is furthered when a court finds, in the course of interpreting the Act, that the Agency was already implementing it correctly. The court of appeals' elevation of judicial review to the level of a "goal" of the Clean Air Act is the sole basis for its conclusion that totally unsuccessful litigation is capable of yielding public benefits that justify an award of attorneys' fees. For example, the court stated that "by assisting judicial interpretation of the Clean Air Act, Sierra Club and EDF aided agency implementation and Congressional reevaluation of the Act" (App. A, infra, 8a) (footnote omitted). The Agency's implementation of the Act, however, was found to be in full accord with congressional intent, and it is therefore difficult to imagine that the Agency was aided in any way by judicial reaffirmation of its actions. As for congressional reevaluation of the Act, Congress has ample tools at its command to conduct that reevaluation without the assistance of litigants who press unsuccessful claims. The legislative history of Section 307(f) does not support the notion that it was designed to promote unsuccessful litigation for the edification of Congress. The court below awarded attorneys fees not only because the respondents brought "complex and novel" issues before it (App. A, infra, 13a), but also because "their assistance in the resolution of the issues was substantial" (ibid.). The court's reliance on the "substantial nature of petitioners' assistance" (id. at 16a), however, is insufficient to justify an award of attorneys' fees. /5/ Surely the fact that a litigant's position, though wrong, was competently presented does not make fee-shifting appropriate. The court stated that it "was totally dependent upon Sierra Club to brief and advocate the opposition to a variable standard" (App. A, infra, 17a). But the court failed to point out that absent this litigation there would have been no need for judicial evaluation of the variable standard in the first place. Similarly, the court found that EDF's contributions expedited and "enriched" its consideration of the ex parte contacts issue, and allowed the court to "resolve close questions of interpretation for future rulemaking under the Act" (id. at 18a). The court's consideration, of course, was only necessary because EDF raised the ex parte contacts issue. Nothing in the Act, moreover, suggests that Congress meant to pay litigants to resolve questions that might not even arise until "future rulemaking(s)" (ibid.). An award of attorneys' fees is not "appropriate" merely because it furthers, even substantially, jurisprudential understanding. /6/ Congress assigned to EPA the expensive, time-consuming and important responsibility of implementing the Clean Air Act. When EPA missteps, Congress has encouraged private litigants to inovke judicial review to put the Agency back on course. But where EPA has not strayed, there is little logic to the assumption that Congress intended to pay self-appointed representatives of the public interest /7/ to judicially reaffirm the Agency's actions. Respondents were, of course, free to take their disagreements with the Agency's approach to court, but they should not expect the government to pay them for having its course of action vindicated. Rewarding litigants who actually aid Agency implementation of the Clean Air Act by correcting administrative errors is sufficient incentive for the citizen involvement in the implementation of the Act that was contemplated by Congress. Rewarding unsuccessful litigants who do no more than vindicate the Agency's approach to the statute not only does nothing to assist implementation of the Act but, on the contrary, frustrates that purpose by diverting scarce Agency resources from more pressing needs. /8/ 2. The lower court's liberal interpretation of Section 307(f) is inconsistent with certain fundamental considerations underlying the doctrine of sovereign immunity and the traditional rules governing the allocation of attorneys' fees. The court of appeals' departure from these traditional norms cannot be squared with the literal language of the statute, or its legislative history. "(T)he United States, as soveriegn, 'is immune from suit save as it consents to be sued * * * .'" United States v. Testan, 424 U.S. 392, 399 (1976), quoting United States v. Sherwood, 312 U.S. 584, 586 (1941). The Court has emphasized that such consent "cannot be implied but must be 'unequivocally expressed.'" Army and Air Force Exchange Service v. Sheehan, No. 80-1437 (June 1, 1982), slip op. 6, quoting United States v. Testan, supra, 424 U.S. at 399; United States v. Mitchell, 445 U.S. 535, 538 (1980). Where Congress has waived sovereign immunity, its waiver is to be "construed strictly in favor of the sovereign." McMahon v. United States, 342 U.S. 25, 27 (1951); United States v. Kubrick, 444 U.S. 111, 117-118 (1979); United States v. Sherwood, supra, 312 U.S. at 590. Thus, in interpreting a statute that waives the immunity of the United States, the courts should not "enlarge its liability * * * beyond what the language requires." Eastern Transportation Co. v. United States, 272 U.S. 675, 686 (1927). Strict construction conserves the public fisc and limits recovery to those situations in which it may be confidently concluded that Congress has determined that the government should be liable. See, e.g., Indian Towing Co. v. United States, 350 U.S. 61, 68-69 (1955). These principles are, of course, fully applicable to claims against the government for attorneys' fees. /9/ Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 267-268 & n.42 (1975). In addition to the bar that sovereign immunity interposes to fee awards against the government, attorneys' fees generally are not available to parties who do not prevail on any claim. /10/ Interpretation of the Clean Air Act to allow an award of fees to the Sierra Club and Environmental Defense Fund in this case contravenes this general rule. Such an interpretation should be particularly disfavored here because it increases the burden of the statute on the public fisc. See Lehman v. Nakshian, 453 U.S. 156, 161 n.8 (1981). Thus respondents' claims for fees should not be allowed unless the Court finds that Congress clearly and "unequivocally" departed from the general presumption against awarding fees to totally unsuccessful litigants. Id. at 160-161. The government does not dispute that Congress has authorized attorneys' fees awards against the government. The legislative history of Section 307(f) clearly demonstrates that Congress meant to waive the government's traditional immunity and to overcome the presumption of the "American Rule" against fee-shifting. See H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 337 (1977) ("In adopting this provision concerning fees, the committee intended to meet the requirement for specific authorization imposed by 28 U.S.C. sec. 2412 and by the Supreme Court's ruling in Alyeska * * * ."). But Congress' decision to subject the government to attorneys' fee awards under Section 307(f) does not mean that it has consented to an award in the circumstances of this case. Nothing in the language or legislative history of Section 307(f) suggests that attorneys' fees may be assessed against the government in favor of unseccessful suitors. It is highly unlikely that such a radical departure from both the American Rule on attorneys' fees and the general rules of construction governing waivers of sovereign immunity could have passed Congress with nary a mention, let alone a clear exposition of Congress' intent. 3. The court of appeals misinterpreted Congress' intent in enacting Section 307(f). The court concluded that Congress' decision not to employ a "prevailing party" standard in Section 307(f) necessarily meant that success on the merits was not a relevant inquiry. The government agrees that success on the merits, in the traditional sense of a favorable final judgment, is not a prerequisite for an award of fees under the statute. Nevertheless, Section 307(f)'s legislative history clearly indicates Congress' understanding that some tangible accomplishment is a prerequisite to eligibility for a fee award under the statute. There is little in the legislative history to support the court of appeals' conclusion that unsuccessful, albeit competent, litigation of novel or important issues is the sort of contribution to the administration of the Clean Air Act that Congress intended to reward with attorneys' fees. a. Because the language of Section 307(f) does not identify what situations Congress thought might be "appropriate" for attorneys' fee awards, the court of appeals turned to the legislative history for guidance. The court erred, however, in confining its analysis to the legislative history of Section 307(f) alone. That section was not added to the Clean Air Act until 1977, and its meaning can only be determined by tracing its origins in the Clean Air Act of 1970. In the 1970 Act, Congress authorized courts to award attorneys fees in "appropriate" cases under Section 304(d), 42 U.S.C. (Supp. IV) 7604(d) -- the so-called citizens' suit provision of the Act. That section allows citizens to bring enforcement actions directly against persons or entities alleged to be in violation of the Act or against the EPA Administrator for failure to perform a nondiscretionary duty. Congress' purpose in enacting this provision was to supplement government enforcement efforts and motivate government agencies to take more vigorous enforcement actions themselves. As stated in the Senate Report (S. Rep. No. 91-1196, 91st Cong., 2d Sess. 36-37, 38-39 (1970)): Government initiative in seeking enforcement under the Clean Air Act has been restrained. Authorizing citizens to bring suits for violations of standards should motivate governmental agencies charged with the responsibility to bring enforcement and abatement proceedings. * * * * * The Committee bill would provide in the citizen suit provision that actions will lie against the Secretary for failure to exercise his duties under the Act, including his enforcement duties. The Committee expects that many citizen suits would be of this nature, since such suits would reduce the ultimate burden on the citizen of going forward with the entire action. Thus, Congress' purpose was to enlist the aid of citizens in those situations where the government was not living up to its responsibilities. It is against this backdrop that the Senate Report's explanation of the attorneys' fees provision in Section 304(d) must be evaluated (S. Rep. No. 91-1196, supra, at 38) (emphasis added): Concern was expressed that some lawyers would use section 304 to bring frivolous and harassing actions. The Committee has added a key element in providing that the courts may award costs of litigation, including reasonable attorney and expert witness fees, whenever the court determines that such action is in the public interest. /11/ The court could thus award costs of litigation to defendants where the litigation was obviously frivolous or harassing. This should have the effect of discouraging abuse of this provision, while at the same time encouraging the quality of the actions that will be brought. The Courts should recognize that in bringing legitimate actions under this section citizens would be performing a public service and in such instances the courts should award costs of litigation to such party. This should extend to plaintiffs in actions which result in successful abatement but do not reach a verdict. For example, if as a result of a citizen proceeding and before a verdict is issued, a defendant abated a violation, the court may award litigation expenses borne by the plaintiffs in prosecuting such actions. Congress was thus focusing on two concerns, neither of which supports the court of appeals' approach to the statute. /12/ First, Congress wanted to protect prevailing defendants against the burden of having to oppose frivolous lawsuits. Second, Congress wanted to reward legitimate citizen suits. Although the court of appeals would apparently read "legitimate actions" as including those raising "important, novel or complex" issues (App. A, infra, 13a), it is clear from a careful reading of the entire passage that "legitimate actions" can only have meant successful actions. That is because the next sentence of the report states that fee awards should "extend to plaintiffs in actions which result in successful abatement but do not reach a verdict" (S. Rep. No. 91-1196, supra, at 38) (emphasis added). While Congress thus obviated the need for a plaintiff to "prevail" in the strictly technical sense of obtaining a judgment, it clearly did not remove the element of success in a practical sense, because a party still had to "win" in the sense of producing the desired result, albeit without a verdict. As Judge Wilkey put it in his dissent in Alabama Power Co. v. Gorsuch, supra, 672 F.2d at 15, 19, to be awarded attorneys' fees a party must at least not lose. /13/ A fair reading of the Senate Report thus demonstrates that "abatement without final judgment" represents the limits of a court's discretion to award fees under Section 304(d) to non-prevailing plaintiffs. /14/ Although the court of appeals recognized the import of the 1970 Senate Report, it nevertheless stated that it did "not read the Report as ruling out all other instances where attorneys' fees would be appropriate" (App. A, infra, 4a n.3). Against the backdrop of soverign immunity that should have informed the court's approach, however, it was not necessary for Congress to "rule out" categories of cases; rather, Congress must clearly and affirmatively "rule in" those situations where it meant to authorize fee awards. And, at least as of 1970, there is no clear indication that Congress contemplated fee awards to totally unsuccessful litigants. /15/ b. In addition to dismissing the 1970 Senate Report on the grounds that it did not "rule out" (App. A, infra, 4a n.3) the court's construction, the court of appeals held that it must focus its attention on the legislative history of the 1977 amendments, which added an "appropriate" attorneys' fee provision to Section 307 of the Act (App. A, infra, 4a-6a). The court, however, ignored the motivation behind Congress' 1977 amendment of Section 307. In 1970, Congress had made no provision for awards of attorneys' fees in actions brought under Section 307, which provides for direct review in the courts of appeals of the Administrator's actions in promulgating regulations and approving state implementation plans. In Natural Resources Defense Council, Inc. v. EPA, 484 F.2d 1331 (1st Cir. 1973), the court was confronted with a request for attorneys' fees in an action brought under Section 307. The court found that Section 304, which permits suits against the Administrator for failure to perform a nondiscretionary duty, aptly covered the case before it, where the essence of the claim was that the Administrator failed to perform his duty with respect to the review and approval of state implementation plans. The court's problem, however, was that Section 304 citizens' suits may only be brought in district courts, while the case before it had to be filed in the court of appeals under Section 307. Using somewhat questionable logic, the court concluded that Section 307 did no more than specify the forum, and that a suit brought under Section 307 was really an action pursuant to Section 304. Accordingly, the court concluded that Congress had given the necessary authorization for an award of attorneys' fees in actions brought under Section 307. 484 F.2d at 1335-1338. This conclusion was subsequently rejected by the Courts of Appeals for the Fifth and District of Columbia Circuits. Natural Resources Defense Council, Inc. v. EPA, 539 F.2d 1068 (5th Cir. 1976); Natural Resources Defense Council, Inc. v. EPA, 512 F.2d 1351 (D.C. Cir. 1975). Those courts concluded that Sections 304 and 307 contemplated distinct groups of cases and that Section 304's attorneys' fee provision could not be engrafted onto Section 307 actions. These rulings led Congress to amend Section 307 in 1977 to include express authorization for the award of attorneys' fees in cases brought under that section whenever, as under Section 304, the court deemed such awards to be "appropriate." As the Senate Report explained (S. Rep. No. 95-127, 95th Cong., 1st Sess. 99 (1977)): The purpose of the amendment to Section 307 is to carry out the intent of the committee in 1970 that a court may, in its discretion, award costs of litigation to a party bringing a suit under Section 307 of the Clean Air Act. The law has been interpreted otherwise. Section 304 of the Clean Air Act specifically authorizes courts to award costs; however, section 307 did not contain a specific authorization. Courts have construed the absence of such authorization in section 307 to indicate congressional intent to prohibit a discretionary award of fees in section 307 suits. It is thus clear that the congressional purpose behind the 1977 amendment to Section 307 was to conform that section to Section 304(d). The amendment does not reflect any change in Congress' understanding of when a fee award is "appropriate." Cf. Northcross v. Memphis Board of Education, supra. Thus, under Section 307, as under Section 304, a litigant must "at least not lose" in order to be eligible for a fee award. Fees are "appropriate" if a party prevails or if it accomplishes some tangible result, such as a voluntary agreement by the Administrator to modify a regulation or adopt some other significant policy change. /16/ c. Rather than recognizing the narrow purpose behind Congress' amendment to Section 307, the court of appeals based its entire decision on the House Report accompanying the 1977 amendments. In pertinent part, that report provides as follows (H.R. Rep. No. 95-294, 95th Cong., 1st Sess. 337 (1977)): The committee bill also contains express authority for the courts to award attorneys fees and expert witness fees in two situations. /*/ The judicial review proceedings under section 307 of the act when the court determines such award is appropriate (sic). In the case of section 307 judicial review litigation, the purposes of the authority to award fees are not only to discourage frivolous litigation, but also to encourage litigation which will assure proper implementation and administration of the act or otherwise serve the public interest. The committee did not intend that the court's discretion to award fees under this provision should be restricted to cases in which the party seeking fees was the "prevailing party." In fact, such an amendment was expressly rejected by the committee, largely on the grounds set forth in NRDC v. EPA, 484 F.2d 1331, 1388 (sic) (1st Cir. 1973). /*/ Such fees are already authorized to be awarded in suits brought under Section 304 of the Act. The court of appeals ruled that whatever the policy behind Section 304 attorneys' fees actions this language "shows that Congress in 1977 specifically adopted the far broader policy of rewarding substantial contributions to the statutory goals of the Act" (App. A, infra, 4a-5a, n.3). Close examination of the House Report, however, reveals several flaws in the court's reasoning. First, the initial paragraph, like the 1977 Senate Report, shows only an intent to have Section 307 parallel the existing attorneys' fee provision in Section 304. Second, the next paragraph quite clearly limits itself to actions under Section 307, and does not speak to Section 304 actions. It would be curius indeed if Congress really meant to adopt a "far broader policy" for Section 307 actions; indeed, such a result cannot be squared with the Senate Committee's explanation of the need to amend Section 307 simply to bring it into harmony with Section 304. S. Rep. No. 95-127, supra, at 99. Cf. Northcross v. Memphis Board of Education, supra. Yet the result of the court of appeals' ruling is that Section 307 litigants need not accomplish anything tangible in order to recover attorneys' fees, while Section 304 litigants must at a minimum achieve some tangible result short of judgment. Finally, the House Committee's language about encouraging "proper implementation of the act" does not suggest that unsuccessful litigation contributes to proper implementation. To the contrary, litigation that promotes "proper implementation of the act" is quite obviously akin to the "legitimate actions" contemplated by Congress in 1970. See S. Rep. No. 91-1196, supra, at 38, at page 18, supra. Since the language of the House Report itself does not support an award of attorneys' fees to unsuccessful litigants, it is necessary to analyze the First Circuit's decision in Natural Resources Defense Council, Inc. v. EPA, upon which the House Committee "largely" relied (H.R. Rep. No. 95-294, supra, at 337). Again, a close reading of the case does not support the conclusions reached by the court below. The primary issue in National Resources Defense Council, Inc. v. EPA was whether fees could ever be awarded to a Section 307 litigant since, at the time of the decision, Section 307 did not explicitly authorize fee awards. See page 21, supra. Only after resolving that question in NRDC's favor did the court turn to a brief examination of the "appropriateness" of a fee award. On this issue, the court was faced with a very narrow question -- should it award any fees where the petitioners had prevailed on most but not all of the claims they had raised. In resolving this issue, the court turned to the legislative history of Section 304(d) which, as we have noted, contemplates awards to successful plaintiffs or to plaintiffs who accomplish something concrete short of judgment. Against this backdrop, the court stated (484 F.2d at 1338) (emphasis added): We are not impressed by the government's argument that because some issues were decided adversely to petitioners each party should bear its own costs. * * * We are at liberty to consider not merely "who won" but what benefits were conferred. The purpose of an award of costs and fees is not mainly punitive. It is to allocate the costs of litigation equitably, to encourage the achievement of statutory goals. When the government is attempting to carry out a program of such vast and unchartered (sic) dimensions, there are roles for both the official agency and a private watchdog. The legislation is itself novel and complex. Given the implementation dates, its early interpretation is desirable. It is our impression, overall, that petitioners, in their watchdog role, have performed a service. Were we to believe that the litigation were wholly or in substantial part frivolous, we would not, of course, award costs of any description to petitioners. In such cases, indeed, we reserve the right to award costs and fees in favor of the EPA. But the challenges here, even those not sustained, were mainly constructive and reasonable. And petitioners were successful in several major respects; they should not be penalized for having also advanced some points of lesser weight. Thus, on its face, the First Circuit's opinion is far narrower than the court of appeals here suggested. NRDC won major portions of its case; nothing in the First Circuit's opinion suggests that fees would still have been awarded had NRDC failed to prevail on a single issue. The court's dictum about petitioners' "watchdog" role cannot be considered in isolation; rather, it must be examined in light of the government's contention that because NRDC lost some issues it should be denied any fee award. 484 F.2d at 1338. Only in this limited sense can the First Circuit be said to have rejected a "prevailing party" standard, /17/ and there is nothing in the 1977 House Report's citation to NRDC v. EPA to suggest that it meant to go beyond this holding. In short, the court of appeals has adopted an erroneous standard unsupported by the plain language of Section 307(f) or its legislative history. The case has worked a virtual revolution in the traditional law of attorneys' fees, in purported reliance on congressional intent. It is unlikely, however, that such a revolution would have occurred in Congress without anyone noticing it. In light of the guiding principles of sovereign immunity and the general presumption against fee awards to unsuccessful litigants, Congress clearly has not spoken in the certain and unequivocal terms required to support rhe court of appeals' decision. /18/ CONCLUSION The petition for a writ of certiorari should be granted Respectfully submitted. REX E. LEE Solicitor General CAROL E. DINKINS Assistant Attorney GENERAL LOUIS F. CLAIBORNE Deputy Solicitor General RICHARD G. WILKINS Assistant to the Solicitor General KATHRYN A. OBERLY JAMES M. SPEARS JAMES P. LEAPE Attorneys AUGUST 1982 /*/ The parties involved in the attorneys' fees litigation are solely those appearing in the caption of the case in this Court. This case began, however, as eight consolidated petitions for review under the Clean Air Act. At that stage of the proceedings, the litigants included a large number of other parties, mostly electric utilities, whose names are collected in Appendix D, infra, 41a-42a. /1/ A complete history of the rulemaking is set forth in the court of appeals' merits opinion, Sierra Club v. Costle, 657 F.2d 298 (D.C. Cir. 1981), and need not be repeated here. As described by the court of appeals, the final new source performance standards regulated emissions of sulfur dioxide, particulate matter, and nitrogen oxides. Respondents, however, only challenged certain features of the sulfur dioxide standard. Accordingly, the above description of the merits litigation is confined to that aspect of the new source performance standards. /2/ Jurisdiction in the court of appeals was properly predicated on Section 307(b)(1) of the Clean Air Act, 42 U.S.C. (Supp. IV) 7607(b)(1), which provides that judicial review of many of the Administrator's actions, including the promulgation of new source performance standards, may be had only in the United States Court of Appeals for the District of Columbia Circuit. /3/ Actually, the court issued its opinion on January 22, 1982. That opinion was later withdrawn and a substitute opinion issued on February 5, 1982. On the same day, the court issued attorneys' fee decisions in Alabama Power Co. v. Gorsuch, 672 F.2d 1 (D.C. Cir. 1982) (petition for rehearing pending, No. 78-1006), and Environmental Defense Fund, Inc. v. EPA, 672 F.2d 42 (D.C. Cir. 1982) (petition for rehearing pending, No. 79-1580). The principal differences between the January and February Sierra Club opinions are that the February 5 opinion adds a footnote responding to Judge Wilkey's dissent in Alabama Power Co. v. Gorsuch, supra, 672 F.2d at 8-33, and deletes a passage cautioning that the amount of an award to "self-appointed representatives of the public interest" should be closely scrutinized. /4/ The impact of the court's decision is not necessarily limited to attorneys' fee awards under Section 307(f) of the Clean Air Act. Some 13 other federal statutes contain virtually identical attorneys' fee provisions. See Toxic Substances Control Act, 15 U.S.C. 2618(d); Endangered Species Act of 1973, 16 U.S.C. 1540(g)(4); Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. (Supp. IV) 1270(d); Deep Seabed Hard Mineral Resources Act, 30 U.S.C. (Supp. IV) 1427(c); Clean Water Act, 33 U.S.C. 1365(d); Marine Protection, Research and Sanctuaries Act of 1972, 33 U.S.C. 1415(g)(4); Deepwater Port Act of 1974, 33 U.S.C. 1515(d); Safe Drinking Water Act, 42 U.S.C. 300j-8(d); Noise Control Act of 1972, 42 U.S.C. 4911(d); Energy Policy and Conservation Act, 42 U.S.C. 6305(d); Powerplant and Industrial Fuel Use Act of 1978, 42 U.S.C. (Supp. IV) 8435(d); Ocean Thermal Energy Conversion Act of 1980, 42 U.S.C. (Supp. IV) 9124(d); and Outer Continental Shelf Lands Act, 43 U.S.C. (Supp. IV) 1349(a)(5). In light of this Court's decision in Northcross v. Memphis Board of Education, 412 U.S. 427 (1973), that similar attorneys' fee provisions should be interpreted pari passu, it is likely that the ruling below will be extended to claims arising under other statutes. Indeed, a separate panel of the court of appeals has already interpreted the attorneys' fee provision in the Toxic Substances Control Act to permit awards to non-prevailing parties, in part by reliance on the decision in this case. See Environmental Defense Fund, Inc. v. EPA, 672 F.2d 42, 48 (D.C. Cir. 1982) (petition for rehearing on other grounds pending, No. 79-1580). The government does not plan to seek this Court's review of the decision in Environmental Defense Fund v. EPA because in that case EDF prevailed on three of the four issues it litigated on the merits; however, the opinion clearly sanctions an award to totally unsuccessful parties. The ruling in the present case is also having an immediate impact on other pending litigation. For example, the Energy Action Educational Foundation is now seeking attorneys' fees and costs under the Outer Continental Shelf Lands Act for its work in the district court, the court of appeals and this Court in Watt v. Energy Action Educational Foundation, No. 80-1464 (Dec. 1, 1981), notwithstanding the fact that this Court unanimously rejected Energy Action's position on the merits. /5/ The court of appeals' estimation of respondents' contribution to the litigation increased markedly between the time it rendered its decision on the merits and its opinion below. For example, in its opinion below the court praised EDF for assisting the court's deliberations on the ex parte contacts issue. In the opinion on the merits, however, the court stated that "the parties," presumably including EDF, did not make the court's task of identifying the actions and incidents that gave rise to EDF's complaints "an easy one." 657 F.2d at 386 n.423. The court stated (id. at 391): EDF does not specify which particular features in each of the above-numerated communications violated due process or constituted errors under the statute; indeed, EDF nowhere lists the communications in a form designed to clarify why any particular communication was unlawful. Instead, EDF labels all post-comment communications with EPA -- from whatever source and in whatever form -- as "ex parte," and claims that "this court has repeatedly stated that ex parte contacts of substance violate due process." As noted, the court rejected EDF's position in its entirety (657 F.2d at 386-410). Similarly, the court had no difficulty rejecting Sierra Club's construction of the statute. The court found the language of the statute itself to be relatively clear (id. at 319), and concluded that it "critically undercut()" Sierra Club's position (id. at 318). The court found Sierra Club's arguments based on the legislative history no more persuasive. See generally id. at 319-322. /6/ Seen in this light, the ruling in this case conflicts with the spirit of the Court's recent decision in Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., No. 80-327 (Jan. 12, 1982). Reviewing the Article III requirements for standing to sue, the Court there emphasized that federal courts are neither "publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding" nor "judicial versions of college debating forums." Slip op. 8. Yet it is precisely for the ventilation of public grievances and the refinement of jurispreduntial understanding that respondents were awarded fees in this litigation. /7/ Natural Resources Defense Council, Inc. v. EPA, 484 F.2d 1331, 1338-1339 (1st Cir. 1973). /8/ The court of appeals asserted that it would award fees to totally unsuccessful parties only in "exceptional" circumstances (App. A, infra, 13a). The court, however, provided no guidelines for ascertaining the "exceptional" case. Implementation of statutes like the Clean Air Act is inherently important and inevitably complex, and it will be a rare case that does not raise novel issues that a court, like the one below, might find worthy of resolution. See id. at 12a-13a. So long as the present ruling stands, therefore, it can only encourage substantial amounts of lengthy litigation that might otherwise not be brought, at great cost both to the courts and the Executive Branch. /9/ This Court's recent decision in Lehman v. Nakshian, 453 U.S. 156 (1981), illustrates how principles of sovereign immunity should impact upon Section 307(f)'s provision for attorneys' fees in "appropriate" cases. In Lehman, plaintiff sued the Navy under the Age Discrimination in Employment Act of 1967, 29 U.S.C. 633a, which waived sovereign immunity for such suits. Plaintiff claimed she was entitled to a trial by jury. The Court noted that, in general, trial by jury is not available in suits against the United States. In light of this general rule, the Court held that "accepted principles of sovereign immunity require that a jury trial right be clearly provided in the legislation creating the cause of action." 453 U.S. at 162 n.9. The Court further explained that "even if the legislative history were ambiguous, that would not affect the proper resolution of this case, because the plaintiff in an action against the United States has a right to trial by jury only where Congress has affirmatively and unambiguously granted that right by statute." Id. at 168. /10/ As Judge Wilkey stated in his dissenting opinion in Alabama Power Co., supra, 672 F.2d at 13: All precedent and statute points to the fair conclusion that there is a general presumption against one side (particularly the winner) paying the other's attorneys' fees. Thus, when in doubt, no award will be made. Dramatic deviations from the American rule will be construed against. Similarly, there is a presumption that non-prevailing parties are not entitled to costs. /11/ Section 304(d) initially provided for attorneys' fee awards when the court determined that such an award would be in the "public interest." See S. 4358, 91st Cong., 2d Sess. (1970). This was the version of the bill discussed in the Senate Report. The bill was later changed to authorize fees where "appropriate." There is no legislative history, however, to suggest that Congress meant anything substantive by the change. /12/ Indeed, the first concern the "appropriate" standard was designed to deal with cuts against the award of fees in this case. Far from authorizing fees in favor of unsuccessful plaintiffs, the statute was designed to provide fees for successful defendants. /13/ The court of appeals' decision in Metropolitan Washington Coalition for Clean Air v. District of Columbia, 639 F.2d 802 (D.C. Cir. 1981), is not authority to the contrary. At the time plaintiffs filed suit in that case, and for three years thereafter, the District of Columbia was in clear violation of its implementation plan under the Clean Air Act. Plaintiffs never obtained a favorable final judgment, however, because the District modified the plan, and EPA approved the revision, in such a way as to render the case moot. To the extent the court of appeals now reads this decision as sanctioning fee awards to totally unsuccessful parties (App. A, infra, 7a-10a), it is in error for the same reasons it erred in the present case. /14/ The report states that fee awards under Section 304(d) "extend to" situations where plaintiffs accomplish a tangible benefit short of judgment; the report does not imply that a fee award is proper when a litigant merely raises novel but unsuccessful contentions (S. Rep. No. 91-1196, supra, at 38). The summary "section-by-section" analysis of the Senate Report, however, states that a "court may award costs of litigation to either party whenever the court determines such an award is in the public interest without regard to the outcome of the litigation." S. Rep. No. 91-1196, supra, at 65. There is no elaboration on the meaning of "without regard to the outcome of the litigation" but, in light of the more complete explanation of congressional intent at page 38 of the report, there is no reason to believe that Congress intended any radical departure from the notion that awards were to be made to plaintiffs who accomplished something concrete, such as abatement of a violation, yet failed to secure a favorable final judgment. /15/ The court of appeals was concerned (App. A, infra, 11a) with constructing a definition of "appropriate" that would go beyond the "prevailing party" standard that Congress had employed in other statutes, such as the Civil Rights Act of 1964, 42 U.S.C. 2000a-3, and the Civil Rights Act of 1968, 42 U.S.C. 2000e-5. However, the court of appeals overlooked the fact that as of 1970, the first time Congress employed the "appropriate" standard, the courts were narrowly construing "prevailing" to include only those parties that had obtained a favorable final judgment. It was not until 1976, for example, that courts began awarding attorneys' fees to civil rights plaintiffs who "prevailed" by means of a settlement rather than a litigated judgment. See, e.g., Foster v. Boise-Cascade, Inc., 420 F. Supp. 674 (S.D. Tex. 1976); Richardson v. Civil Service Commission of New York, 420 F. Supp. 64 (S.D.N.Y. 1976); Parker v. Mathews 411 F. Supp. 1059 (D.D.C. 1976); Clanton v. Allied Chemical Corp., 409 F. Supp. 282 (E.D. Va. 1976). Thus, Congress' desire to reward parties whose litigation efforts had in fact achieved the result sought, albeit without a judgment, necessitated the adoption of some standard other than the "prevailing party" standard. The court of appeals thus erred in concluding (App. A, infra, 5a n.3, 11a) that if Congress had only meant to reward tangible accomplishments, it would not have drafted a new standard. /16/ The legislative histories of other statutes containing provisions authorizing attorneys' fees where "appropriate" (see note 4, supra) are fully consistent with the government's view of the Clean Air Act. For example, the legislative history of Section 505(d) of the Clean Water Act, 33 U.S.C. 1365(d), shows that Congress specifically intended Section 505(d) to be interpreted similarly to Section 304(d) of the Clean Air Act. Indeed, the House Report simply states that fact. H.R. Rep. No. 92-911, 92d Cong., 2d Sess. 132-133 (1972). The Senate Report, S. Rep. No. 92-414, 92d Cong., 2d Sess. 81 (1972), reiterates the rationale of Section 304(d) of the Clean Air Act in language virtually identical to the Senate Report on the Clean Air Act. Thus, the twin purposes of Section 505(d) of the Clean Water Act are to punish frivolous or harassing litigants and to reward citizens' suits that result in pollution abatement but fail to reach a verdict. The legislative history of the Safe Drinking Water Act, 42 U.S.C. 300j-8(d), states that its attorneys' fee provision is designed "(as) a deterrent against frivolous suits." S. Rep. No. 93-231, 93d Cong., 1st Sess. 17 (1973). The legislative history of the attorneys' fee provision in the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. (Supp. IV) 1270(d), specifically adopts the legislative history of Section 505(d) of the Clean Water Act. H.R. Rep. No. 95-218, 95th Cong., 1st Sess. 90-91 (1977). The legislative history of the Toxic Substances Control Act's attorneys' fee provision, 15 U.S.C. 2618(d), construed by the court of appeals in Environmental Defense Fund, Inc. v. EPA, 672 F.2d 42 (D.C. Cir. 1982), is likewise fully consistent with the government's position here. Although the court of appeals relied heavily on a statement by Senator Tunney that fee awards under the TSCA would be appropriate "where such award is in the public interest without regard to the outcome of the litigation," 122 Cong. Rec. 8301 (1976), the court of appeals failed to analyze the cases Senator Tunney cited in support of that proposition. None of the four cases even remotely suggests the appropriateness of an award for litigating losing issues. Rather, in all four cases, the plaintiffs "prevailed" either in fact or by obtaining a concrete, tangible benefit for themselves or the class they represented in the form of a definite change in the defendant's conduct. Kopet v. Esquire Realty Co., 523 F.2d 1005, 1008-1009 (2d Cir. 1975); Parham v. Southwestern Bell Telephone Co., 433 F.2d 421, 429-430 (8th Cir. 1970); Thomas v. Honeybrook Mines, Inc., 428 F.2d 981, 985 (3d Cir. 1970); Richards v. Griffith Rubber Mills, 300 F. Supp. 338 (D. Or. 1969). The court of appeals in Environmental Defense Fund, Inc. also glossed over Senator Tunney's statement that "the court should follow prevailing case law which holds that a successful plaintiff 'should ordinarily recover an (sic) attorneys' fees' * * * " (122 Cong. Rec. 8300 (1976) (emphasis added)). /17/ Moreover, at the time of the First Circuit's supposed rejection of a "prevailing party" standard, that standard was still being narrowly construed by the courts. See note 15, supra. /18/ The court of appeals also overlooked the fact that Congress has in fact spoken clearly when it meant to award attorneys' fees for the mere presentation of views. In Section 6(c)(4)(A) of the Toxic Substances Control Act, 15 U.S.C. 2605(c)(4)(A), Congress authorized EPA to award reasonable attorneys' fees to persons participating in rulemaking proceedings under the Act. That statute clearly demonstrates that Congress knew how to draft language awarding fees for the mere presentation of issues and viewpoints, whether or not those viewpoints were ultimately adopted. Under the statute, a rulemaking participant may be awarded fees if that participant "represents an interest which would substantially contribute to a fair determination of the issues to be resolved in the proceeding." 15 U.S.C. 2605(c)(4)(A)(i). In deciding what persons represent such an interest, EPA is to take into account "the number and complexity of such issues and the extent to which representation of such interest will contribute to widespread public participation in the proceeding and representation of a fair balance of interests for the resolution of such issues." 15 U.S.C. 2605(c)(4)(A). Clearly, these statutory directives make it appropriate for EPA to compensate persons whose contribution to the public interest lies simply in adding to the variety of public debate on an issue. Nothing remotely comparable can be read into the "appropriate" standard at issue in this case. It is also worth noting that the same Congress that passed Section 307(f) of the Clean Air Act refused to pass a portion of the 1978 Nuclear Regulatory Commission appropriations bill that would have expressly provided for attorneys' fees for unsuccessful proponents of worthy causes before the NRC. Act of Nov. 6, 1978, Pub. L. No. 95-601, 92 Stat. 2947 et seq., discussed in H.R. Rep. No. 95-1089 (Pt. 2), 95th Cong., 2d Sess. 2-3, 22-24 (1978). The rejected section, Section 275(a), appears at pages 2-3 of that House Report. Appendix Omitted