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United States v. Trident Seafoods Corp.

ELR Citation: 26 ELR 21511
Nos. Nos. 94-35989, 95-35074, 92 F.3d 855/43 ERC 1217/(9th Cir., 08/07/1996) decision on costs and attorney fees aff'd

The court affirms a district court decision denying a Clean Air Act (CAA) §113 defendant attorney fees under Fed. R. Civ. P. 68, but granting it costs as a prevailing party under the Equal Access to Justice Act (EAJA). The government had sued defendant, a seafood-processing company, for violating the notice and work practice requirements of the asbestos national emission standard for hazardous air pollutants. The company moved for attorney fees and costs under Rule 68 because the penalty that the court assessed for the notice violations exceeded an offer of judgment that the company had made before trial and that the government rejected. The court first affirms the district court's denial of attorney fees to the company. "Costs"in Rule 68 is intended to refer to all costs properly awardable under the relevant substantive statute, and the CAA indicates that Congress did not intend to award attorney fees unless the action was unreasonable. Thus, the company is entitled to attorney fees only if the action was unreasonable. The court holds that the district court correctly concluded that the action had a reasonable legal basis and based its decision on a rational interpretation of the evidence. The court next affirms the district court's award of statutory costs to the company. There is no irreconcilable inconsistency between the EAJA's provision granting costs to prevailing parties whether or not the action is reasonable and the CAA's provision allowing costs if the government's action is unreasonable. The CAA does not specifically state that costs are available only if the government was unreasonable, nor does it state that costs may not be recovered if the government was reasonable. Rather, the court "may" award costs if it finds the action was unreasonable. Thus, nothing in the language of the CAA indicates an intent to preclude application of the previously enacted EAJA. Finally, the court holds that because Congress intended to waive the government's immunity to cost awards and intended the costs provision of the EAJA to apply to §113 actions, the district court did not err in taxing costs against the government.

[A previous decision in this litigation is published at 25 ELR 21419. Briefs are digested at ELR BRIEFS & PLEADS. 66443 and 66448.]

Counsel for Plaintiff
Lois J. Schiffer
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Counsel for Defendant
Ralph H. Palumbo
Heller, Ehrman, White & McAuliffe
6100 Columbia Ctr.
701 5th Ave., Seattle WA 98104
(206) 447-0900

Before Wright, Pregerson, and Tashima, JJ.