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United States v. 27.09 Acres of Land

Citation: 25 ELR 20339
No. No. 94-6137, 43 F.3d 769/39 ERC 1978/(2d Cir., 12/19/1994) Denial of attorneys fees aff'd

The court holds that the district court did not abuse its discretion in denying an organization's motion for attorneys fees and expenses under the Equal Access to Justice Act (EAJA) in a challenge to prevent condemnation of land for construction of U.S. Postal Service mail and vehicle inspection facilities. The court first holds that the district court did not abuse its discretion in finding that "special circumstances" make an award of attorneys fees unjust under 28 U.S.C. § 2412(d)(1)(A) when all of the fees were expended on discrete efforts that achieved no appreciable advantage, and when the claim of the prevailing parties rests largely on a result to which the claimant made no contribution. The litigation proceeded in two distinct phases: Whether the Postal Service could condemn land before completing an environmental review pursuant to the National Environmental Policy Act and whether, subsequent to condemnation, the Postal Service could construct the new facility without preparing an environmental impact statement. The association was active in the unsuccessful initial phase, when it incurred the fees it seeks to recover under the EAJA, but took a back seat during the successful latter phase, relying on expert affidavits prepared by the three ineligible co-defendants, and joining in the papers submitted by them. The court agrees with the district court that the issues on which the association prevailed in the first phase were secondary to the gravamen of that decision and in no way furthered the aim of voiding the Postal Service's condemnation of the site.

The court also holds that when one or more parties that are ineligible to claim fees under the EAJA, 28 U.S.C. § 2412(d)(2)(B), are willing and able to pursue litigation against the United States, it is unjust to award attorneys fees to an eligible party that acted as a free rider on the ineligible parties' efforts. The EAJA does not finance the joinder of every party having an articulable interest in a case. General equitable principles support the district court's finding that an award of fees would have been unjust.

[Previous decisions in this litigation are published at 20 ELR 21288, 21 ELR 21182, and 24 ELR 21230.]

Counsel for Plaintiff
Diana J. Hassel, Ass't U.S. Attorney
U.S. Attorney's Office
One St. Andrew's Plaza, New York NY 10007
(212) 791-0008

Counsel for Defendants
Donald W. Stever Jr.
Sidley & Austin
875 Third Ave., New York NY 10022
(212) 906-2000

Before Winter, Jacobs and Mukasey,* JJ.