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Sierra Club v. Secretary of the Army

Citation: 17 ELR 20991
No. Nos. 86-1940 et al., 820 F.2d 513/26 ERC 1017/(1st Cir., 06/03/1987) Attorneys fees award aff'd

The court upholds a district court decision awarding attorneys fees under the Equal Access to Justice Act (EAJA) to an environmental group that successfully prevented the Army Corps of Engineers from constructing a port facility and causeway on Sears Island, Maine. The court first holds that the district court conducted the requisite independent inquiry into whether the federal government's position on the merits was substantially justified. The district court recognized that the fact that the government eventually lost in the underlying litigation does not create a presumption that its position was not substantially justified. The district court then made a separate inquiry into the reasonableness of the government's position. The district court's statement that the First Circuit's decision holding that the federal defendants violated the National Environmental Policy Act (NEPA) precludes a finding that the government's position was substantially justified simply indicates that the district court found that the First Circuit's decision undermined the government's claim that it complied with NEPA. The government's victory on the merits in the district court, while deserving some consideration, does not require a finding that the government's position was substantially justified. The court next holds that the district court's conclusion that the government's position was not substantially justified was not clearly erroneous. The government failed to produce evidence, beyond its victory in the district court, that its interpretation of NEPA was substantially justified.

The court holds that the district court properly adjusted its award of attorneys fees to account for the rise in the cost of living from 1981 to 1985. The reenactment of the EAJA in 1985, in which the provision allowing courts to increase the award to reflect inflation was left unchanged, does not indicate that Congress intended to preclude upward revisions for increases in the cost of living prior to the reenactment. Such an interpretation is contrary to the EAJA's purpose of deterring federal agencies from overstepping their authority and prolonging litigation and would result in lower fees for lawyers whose fee applications are heard under the reenacted EAJA than for applications heard under the original EAJA.

The court holds that the district court did not abuse its discretion in refusing to increase the award by 25 percent because of the contingency arrangement between the environmental group and its lawyers. Even if the EAJA permits a multiplier for contingency arrangements, the district court did not abuse its discretion in declining to apply a multiplier based on its examination of the fee arrangement, under which it was understood that there would be fundraising efforts to pay for legal services.

[The district court decision appears at 16 ELR 20976. Decisions in the underyling litigation are published at 15 ELR 20911 and 16 ELR 20487.]

Counsel for Plaintiff-Appellee
Edward F. Lawson
Koff & Lawson
33 Mt. Vernon St., Boston MA 02108
(617) 742-4646

Counsel for Defendants-Appellants
Kathleen P. Dewey
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-4519

Before COFFIN, BOWNES and SELYA, Circuit Judges.