Environmental Defense Fund, Inc. v. Gorsuch

Nos. 81-2083, -2269 (D.D.C. December 7, 1982)

The court grants attorneys fees to the Environmental Defense Fund pursuant to the Equal Access to Justice Act (EAJA) in its lawsuit to compel the Environmental Protection Agency to promulgate the revised National Contingency Plan as mandated by the Comprehensive Environmental Response, Compensation, and Liability Act. The court rejects defendants' contention that plaintiff's application, filed five months after summary judgment, failed to meet the EAJA's deadline of filing within 30 days of final judgment. After determining that neither the EAJA nor its legislative history define the phrase "final judgment," that court rules that in injunctive proceedings it may mean the point at which the agency is in compliance and the case is finally dismissed. The court notes that in "deadline litigation," such as the instant action, enforcement of the judgment is an integral part of the overall action. Therefore, allowing plaintiff to await final disposition of the case before applying for fees serves judicial economy by avoiding multiple filings. In addition, this approach honors the intent of the EAJA because it enables prevailing parties to recover all the costs associated with a compliance action despite attempts by their opponents to delay resolution of the dispute.

Counsel for Plaintiff
Khristine Hall, David Lennett
Environmental Defense Fund, Inc.
1525 18th St. NW, Washington, DC 20036
(202) 833-1484

Counsel for Defendants
David O. Ledbetter
Land and Natural Resources Division
Department of Justice, Washington DC 20530
(202) 633-3483

Lee C. Schroer
Office of the General Counsel
Environmental Protection Agency, Washington DC 20460
(202) 382-4134

[13 ELR 20303]

Pratt, J.:

Memorandum Opinion

Plaintiff, Environmental Defense Fund (EDF), moves for costs and attorney's fees after prevailing in an action against the Environmental Protection Agency (EPA), the Office of Management and Budget (OMB), Anne Gorsuch in her official capacity as Administrator of EPA, and David Stockman in his official capacity as Director of OMB. The original action was brought under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. § 9601, et seq. (Supp. IV 1980). Plaintiff now seeks attorney's fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412 (Supp. IV 1980). For the reasons set forth below, we grant plaintiff's motion and award costs and attorney's fees in the amount of $14,285.04.

I. History of the Litigation

Congress enacted CERCLA, commonly known as Superfund, on December 11, 1980 in response to this country's growing toxic waste problem. The Act directs the President to revise and republish the National Contingency Plan (NCP), which was originally part of the Federal Water Pollution Control Act, as amended, 33 U.S.C. § 1321 (1976). The NCP under that act governed cleanups of oil and certain hazardous substances discharged into navigable waters. CERCLA broadened the scope of the NCP by requiring the executive branch to add a section to be known as the "national hazardous substance response plan which shall establish procedures and standards for responding to release of hazardous substances . . . ." 42 U.S.C. § 9605. The new revised NCP was to be published within one hundred and eighty days of the law's enactment, after notice and opportunity for public comment. 42 U.S.C. § 9605. Guidelines governing the exercise of the response authorities were to have been established and published within the same timeframe. 42 U.S.C. § 9606.

Under CERCLA's requirements, the revised NCP was required to be published by June 9, 1981. It was not published by that date and in response to EDF's June 25, 1981 letter requesting compliance, Mrs. Gorsuch informed plaintiff on July 31, 1981 that it was not possible to specify a promulgation date. On September 3, 1981, EDF filed suit to compel revision of the NCP and on December 30, 1981, moved for summary judgment against all defendants. Defendants' response to that motion illustrates the weakness of defendants' position throughout this litigation. Defendants challenged the extent of plaintiff's injuries and asked the Court to refrain from setting "an immediate deadline for promulgation of a revised NCP" because "defendants are making every reasonable effort to expeditiously and responsibly complete these actions and should not be encumbered by an unnecessary, immediate deadline." Defendants' Brief at ii.

This Court, recognizing CERCLA's clear statutory mandate, granted plaintiff's motion for summary judgment on February 2, 1982.¹ In granting plaintiff's motion, we quoted language of the Tenth Circuit and held that "complete failure of federal officials to comply with Mandatory statutory and regulatory directives . . . warrant[s] relief in the nature of mandamus or mandatory injunction." Carpet, Linoleum and Resilient Tile Layers Local No. 419 v. Brown, 656 F.2d 564, 568 (10th Cir.1981) (emphasis supplied).

In conjunction with the order granting summary judgment, we issued an order setting forth a timetable for compliance. That order directed defendants to notice the proposed NCP in the Federal Register within 30 days for public comment, republish the revised NCP within 90 days of the order, and publish in the Federal Register guidelines for emergency response authorities within 90 days of the date of the order.

On March 4, 1982, defendants moved for reconsideration of the February 12 order. This Court, on March 19, 1982, extended the comment period and the deadline for final promulgation by 15 days. On April 6, 1982, defendants noticed their appeal of both orders. One month later, defendants moved for modification of the injunction or in the alternative, for a stay pending appeal. We denied the motion for a stay and because the appeal deprived this court of jurisdiction to modify its previous order, we refused to extend the deadlines. After the Court of Appeals granted defendants' request to vacate their appeal, we extended the deadline for final promulgation to July 16, 1982. On that date, defendants published the revised NCP and three days later, informed the Court of their compliance and moved to dismiss the action.

II. Plaintiff's Request for Attorney's Fees

Plaintiff filed its motion for costs, attorney's fees and expenses on July 30, 1982, pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. The Act provides in part:

. . . a Court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (3), to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action.

28 U.S.C. § 2412(b).

Defendants' opposition to plaintiff's motion rests on the claim that plaintiff failed to meet the thirty-day filing requirement of the Act. Under 28 U.S.C. § 2412(d)(1)(B,

A party seeking an award of fees and other expenses shall, within 30 days of final judgment in the action, submit to the court an application for fees and other expenses . . . .

Defendants argue that since summary judgment was entered on February 12, 1982, plaintiff's July 30 application was untimely.

III. Discussion

The issue we must now resolve is what constitutes a "final judgment" under the EAJA. Defendants contend that the entry of summary judgment should be recognized as the time when final judgment was issued. Plaintiff responds that a more flexible interpretation of the phrase should be adopted in equitable cases in [13 ELR 20304] which the court retains jurisdiction and issues modifications of its original order.

In considering this novel question, we first note that the EAJA itself provides no definition of the phrase "final judgment." The legislative history is not significantly more helpful, although it contains some language that is relevant to the present inquiry. The House Conference Report explained the provision as follow:

The Senate bill also requires a party seeking an award of fees and other expenses to submit an application within thirty days of final disposition of the adjudication . . . . (emphasis supplied).

H. CONF. REP. NO. 1434, 96th Cong., 2d Sess. 21, reprinted in [1980] U.S. CODE CONG. & AD. NEWS 4953, 5010. This language provides some support for plaintiff's position, since there was no actual disposition of the case until the rule was promulgated. This occurred on July 16, 1982, following which defendants moved to dismiss the proceeding. We are not convinced, however, that wording in the report fully resolves the question here.

Since the EAJA and its history do not provide an answer to the issue in this action, we look for guidance to other courts that have considered the issue of what constitutes "final judgment." Obviously, any summary judgment is literally a final judgment, which can be appealed. However, we are convinced, after reviewing the cases, that "finality" is a question which must be practically considered in light of the circumstances of the particular case, and that no precise definition has been agreed upon. The Supreme Court recognized the ambiguity of the term when considering whether attorney's fees could be provided under § 718 of the Education Amendments of 1972. It noted in Bradley v. Richmond School Board, 416 U.S. 696 (1976) that "This Court has been inclined to follow 'a pragmatic approach' to the question of finality." 416 U.S. at 722-23 n.28. It went on to relate the term "finality" to the question of awarding attorney's fees under that statute and held that fees can be awarded where the propriety of the fee award was pending resolution on appeal when the statute became law. The Court declined to interpret the act's finality language but said in a footnote ". . . we venture to say only that the entry of any order that determines substantial rights of the parties may be an appropriate occasion upon which to consider the propriety of an award of counsel fees in school desegregation cases." 416 U.S. at 723 n.28 (emphasis supplied). Just as the Supreme Court indicated that there may be sufficient reason for granting attorney's fees before all the issues in a case are resolved (presumably so that attorneys do not work for years without compensation), we are convinced that in injunctive proceedings such as this, "final judgment" may also mean the point at which the agency is in compliance and the case is finally dismissed. This approach is the most practical solution to the case before us, and it also conforms to the purposes of the EAJA in general and the filing requirement in particular.

It is important initially to recognize that this case is an example of what plaintiffs refer to as "deadlines litigation." This is litigation in which an agency has failed to comply with statutorily-imposed deadlines and the court is asked to order compliance. Typically, the determination that the agency is in noncompliance is secondary to the question of when it will be required to comply. Thus, the enforcement of the judgment is an integral part of the overall action, and litigation may go on for years before the agency is finally determined to be in compliance. The Seventh Circuit Court of Appeals recently considered an analogous question in Gautreaux v. Chicago Housing Authority, No. 81-2223 (7th Cir. Aug. 30, 1982) and decided that in injunctive proceedings in which the district court has retained jurisdiction to effectuate the judgment, the case would be viewed as pending for purposes of the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988 (1976). The defendant in Gautreaux argued that all proceedings subsequent to entry of the remedial order were supplemental and merely efforts to enforce the original judgment. The district court rejected this argument and the Court of Appeals affirmed, stating:

Like the district judge, we favor a commonsense approach. It is more consistent with the history of this particular lawsuit, with other cases in which the Fees Awards Act has been an issue, and with the nature of equitable proceedings in general not to divide a continuously active equitable case into a host of smaller matters.

No. 81-2223 at 6.

We are persuaded that the reasoning employed by the Gautreaux court is appropriate in this case. Plaintiff's efforts to effectuate agency compliance with CERCLA's requirements continued for almost a year. Three weeks after summary judgment was granted for plaintiff, defendant moved for reconsideration and the parties were involved in disputes over modifications until the agency complied on July 16, 1982. To demand that plaintiff seek attorney's fees before defendants filed their motion to dismiss would require plaintiff to file numerous applications for its fees. The more reasonable solution is to allow the attorneys to wait until final dispostion of the case before applying for fees to avoid duplicative filings. This rule would work to the advantage of both parties since it saves time and expense during the course of litigation and it also serves the goal of judicial economy by allowing the issue of fees to be disposed of in a single proceeding.

This approach conforms to the broad purposes of the EAJA because it allows prevailing parties to recover all the costs associated with a compliance action. Congress recognized that the expense involved in challenging agency action or inaction discourages private parties from litigating valid claims, and passed the EAJA in an attempt to eliminate this inhibiting factor. The Senate Report contains an expression of congressional concern:

Providing an award of fees to a prevailing party represents one way to improve citizen access to courts and administrative proceedings . . . . [B]y allowing an award of reasonable fees and expenses against the Government when its action is not substantially justified, S. 265 provides individuals an effective legal or administrative remedy where none now exists.

H.R. REP. NO. 1418, 96th Cong., 2d Sess. 12, reprinted in [1980] U.S. CODE CONG. & AD. NEWS 4953, 4991.

In a case such as the one before us now in which the agency was in clear violation of the law, Congress contemplated that efforts to promote agency compliance would be rewarded under the EAJA. EDF was the catalyst for agency compliance with CERCLA's statutory mandate, and should be compensated for the hours spent in that effort. Since the work performed by EDF did not end when this Court entered summary judgment against defendants, it would be contrary to the legislative purpose to deny fees on the theory that summary judgment should always be interpreted to mean "final judgment."

We also believe that our interpretation honors the intent of the final judgment requirement of the statute. The rule, as with other statutes of limitation, is intended to provide parties repose and protect them from claims long after a dispute has been resolved. In this case, defendants were responsible for delaying a final resolution of the dispute after the alleged "final order" of February 12. They should not now be able to claim that they are in any way disadvantaged by plaintiff's decision to refrain from filing for fees until after the government exhausted the alternatives to compliance. Indeed, defendants themselves apparently recognized that the litigation ended with the issuance of the revised NCP and not with the entry of summary judgment, as evidenced by their decision to file a motion to dismiss in conjunction with their notice of compliance. Certainly this indicates that there was no danger that plaintiff would disturb previously relied-upon repose by claiming attorney's fees at that juncture in the case rather than at an earlier point.

Lastly, we deny defendants' request for additional time in which to contest plaintiff's request for fees, now that we have decided that the request is not time-barred. Plaintiff should not be required to wait any longer for compensation merely because defendants chose to submit a partial response to plaintiff's application. Throughout this litigation we have considered and granted defendants' requests for modifications and extensions, but now we find no justification for further delay. Plaintiff has fulfilled its [13 ELR 20305] burden under the EAJA and deserves payment for its work in advancing the public interest.²

An order consistent with the foregoing has been entered this day.

Order

Upon consideration of the motion filed by plaintiff Environmental Defense Fund for costs and attorney's fees and expenses in this action and the memorandum and affidavits submitted in support thereof, and finding that plaintiff was the prevailing party, made timely application for attorney's fees and that said fees claimed are reasonable, it is by the Court this 7th day of December, 1982,

ORDERED that the defendants shall pay to the plaintiff an award of costs in an amount as determined by the Clerk of Court and an award of attorney's fees and expenses in the amount of $14,285.04, and it is

FURTHER ORDERED that defendants' motion to dismiss filed July 19, 1982 is granted nunc pro tunc.

1. EDF's action was consolidated with a similar action brought by the State of New Jersey and summary judgment was entered in both cases.

2. We have examined plaintiff's affidavits and timecharts and we are satisfied that $14,285.04 is a reasonable figure. The EDF attorneys who worked on the case were Khristine Hall, a lawyer with eight years experience, and David Lennett, a third year lawyer. Plaintiff assumed that a reasonable hourly rate for the work they performed would be $75 and $60 respectively. These rates accord with the fee schedules approved in Environmental Defense Fund v. Environmental Protection Agency, 672 F.2d 42 [12 ELR 20315] (D.C. Cir. 1982). In that case, the court held that a rate of $90 an hour was reasonable compensation for the work of an attorney with 9 years experience, and that $55 an hour was appropriate for the work of David Lennett, who at that time had two years experience. The timecharts indicate that Ms. Hall spent 42.45 hours and Mr. Lennett spent 177.75 hours on the case. The total lodestar is thus $13,833.75. In addition to attorney time, plaintiff is entitled to $451.29 to cover the cost of employing the two law students who assisted in the case. We think these figures are more than reasonable in light of the high quality of the work performed.