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D.C. Fed'n of Civic Ass'ns v. Volpe

ELR Citation: 5 ELR 20665
Nos. No. 74-1974, 520 F.2d 451/8 ERC 1423/(D.C. Cir., 10/06/1975) Remanding & vacating district court's denial of attorney fees

The case is remanded to the district court with instructions to vacate that part of the Amended Final Judgment which denied plaintiffs' request for attorney fees in connection with their successful litigation against the proposed Three Sisters Bridge. The lower court erred in summarily denying plaintiffs' motion for reconsideration based on the intervening en banc D.C. Circuit Court of Appeals decision in Wilderness Society v. Morton, which adopted the "private attorney general" theory as a basis for attorney fees awards.The district court's error was prejudicial despite the Supreme Court's subsequent rejection of that theory, since plaintiffs had based their original request for fees on the "common benefit" theory as well. Had the district court acted correctly, a final order disposing of both legal theories would have been entered and would, when appealed, have brought both theories before this court. The lower court shall issue a new order; if, as is likely, it again denies fees, the court should include a statement of its reasons for not granting the request under the "common benefit" theory.

Counsel for Plaintiffs-Appellants
Roberts B. Owen
Covington & Burling
888 16th Street, NW
Washington, DC 20006

Counsel for Defendant-Appellee District of Columbia
C. Francis Murphy Corporation Counsel
Louis P. Robbins Principal Asst. Corp. Counsel
Richard W. Barton
David P. Sutton Asst. Corp. Counsels
District Building
14th & E St., NW
Washington, DC 20004

Wright and Leventhal, JJ.