No. 98-1929
In the Supreme Court of the United States
AMERICAN LUNG ASSOCIATION, ET AL., PETITIONERS
v.
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
QUESTION PRESENTED
Whether the court of appeals properly dismissed petitioners' request for
attorneys' fees because petitioners did not achieve any success on the merits
of their claims.
In the Supreme Court of the United States
No. 98-1929
AMERICAN LUNG ASSOCIATION, ET AL., PETITIONERS
v.
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).
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 (SO2) to add a five-minute standard to protect
against short-term, high-level SO2 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 concluded
that short-term peak SO2 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 capping 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 contended that the Administrator's
analysis of the facts amounted to a conclusive finding that SO2 bursts adversely
affect asthmatics' health, thereby triggering her duty to promulgate a new
NAAQS. Id. at 13. As relief, petitioners requested the court of appeals
to vacate EPA's decision.
Noting that petitioners challenged much of the data the Administrator relied
upon, as well as her conclusions 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 decision, ibid., and remanding the case to permit her "to
explain her conclusions more fully." Id. 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 Administrator to decline to protect an identifiable group of asthmatics
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 SO2 bursts
adversely affect asthmatics' health. Id. 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 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." Nothing 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 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 benefit 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
(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 outcome 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 remand 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. Id. 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 underpinning 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 conclusions 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]e 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 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 characterization 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 substance 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 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 particular
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 inconsistent 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 petitioners 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 statutory 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 within any particular
time frame, and EPA agreed to a deadline only because petitioners 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 consistent with CAA Section
307(f) and applicable precedents 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 litigation 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 terminates 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." Ibid. (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 SO2 NAAQS was not vacated. The Agency is
not under any obligation to promulgate a new, more stringent SO2 standard;
nor is it required to reconsider its decision not to revise the NAAQS. Moreover,
the fact that the remand terminated the litigation, with the court of appeals
no longer retaining jurisdiction over the case, does not automatically 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 burden petitioners cannot
meet here. See Sierra Club, 769 F.2d at 800.
4. The court of appeals' decision denying fees presents 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 outcome 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 obtained 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 conducting 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.
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
* 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 plaintiff's 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. Id. at 783.