No. 73-1977
Argued: January 22, 1975Decided: May 12, 1975
161 U.S. App. D.C. 446, 495 F.2d 1026, reversed.
WHITE, J., delivered the opinion of the Court, in which BURGER, C. J., and STEWART, BLACKMUN, and REHNQUIST, JJ., joined. BRENNAN, J., post, p. 271, and MARSHALL, J., post, p. 272, filed dissenting opinions. DOUGLAS and POWELL, JJ., took no part in the consideration or decision of the case.
Robert E. Jordan III argued the cause for petitioner. With him on the brief were Paul F. Mickey, James H. Pipkin, Jr., and John D. Knodell, Jr.
Dennis J. Flannery argued the cause for respondents. With him on the brief were Joseph Onek, John F. Dienelt, and Thomas B. Stoel, Jr. *
[ Footnote * ] Briefs of amici curiae urging affirmance were filed by June Resnick German, Haynes N. Johnson, and Nicholas A. Robinson for the Association of the Bar of the City of New York; by Armand Derfner, Albert E. Jenner, Jr., Nicholas deB. Katzenbach, Elliot L. Richardson, Bernard G. Segal, Whitney North Seymour, E. Barrett Prettyman, Jr., David S. Tatel, J. Harold Flannery, and Paul Dimond for the Lawyers’ Committee for Civil Rights Under Law; by [421 U.S. 240, 241] Jack Greenberg, James M. Nabrit III, Eric Schnapper, and Charles Stephen Ralston for the NAACP Legal Defense and Educational Fund, Inc.; and by Henry Geller and Abraham S. Goldstein for the Center for Law in the Public Interest. [421 U.S. 240, 241]
MR. JUSTICE WHITE delivered the opinion of the Court.
This litigation was initiated by respondents Wilderness Society, Environmental Defense Fund, Inc., and Friends of the Earth in an attempt to prevent the issuance of permits by the Secretary of the Interior which were required for the construction of the trans-Alaska oil pipeline. The Court of Appeals awarded attorneys’ fees to respondents against petitioner Alyeska Pipeline Service Co. based upon the court’s equitable powers and the theory that respondents were entitled to fees because they were performing the services of a “private attorney general.” Certiorari was granted, 419 U.S. 823 (1974), to determine whether this award of attorneys’ fees was appropriate. We reverse.
I
A major oil field was discovered in the North Slope of Alaska in 1968. 1 In June 1969, the oil companies constituting the consortium owning Alyeska 2 submitted an [421 U.S. 240, 242] application to the Department of the Interior for rights-of-way for a pipeline that would transport oil from the North Slope across land in Alaska owned by the United States, 3 a major part of the transport system which would carry the oil to its ultimate markets in the lower 48 States. A special interdepartmental task force studied the proposal and reported to the President. Federal Task Force on Alaskan Oil Development: A Preliminary Report to the President (1969), in App. 78-89. An amended application was submitted in December 1969, which requested a 54-foot right-of-way, along with applications for “special land use permits” asking for additional space alongside the right-of-way and for the construction of a road along one segment of the pipeline. 4
Respondents brought this suit in March 1970, and sought declaratory and injunctive relief against the Secretary of the Interior on the grounds that he intended to issue the right-of-way and special land-use permits in violation of 28 of the Mineral Leasing Act of 1920, 41 Stat. 449, as amended, 30 U.S.C. 185, 5 and without [421 U.S. 240, 243] compliance with the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. 4321 et seq. 6 On the basis of both the Mineral Leasing Act and the NEPA, the District Court granted a preliminary injunction against issuance of the right-of-way and permits. 325 F. Supp. 422 (DC 1970).
Subsequently the State of Alaska and petitioner Alyeska were allowed to intervene. 7 On March 20, 1972, the Interior Department released a six-volume Environmental Impact Statement and a three-volume Economic [421 U.S. 240, 244] and Security Analysis. 8 After a period of time set aside for public comment, the Secretary announced that the requested permits would be granted to Alyeska. App. 105-138. Both the Mineral Leasing Act and the NEPA issues were at that point fully briefed and argued before the District Court. That court then decided to dissolve the preliminary injunction, to deny the permanent injunction, and to dismiss the complaint. 9
Upon appeal, the Court of Appeals for the District of Columbia Circuit reversed, basing its decision solely on the Mineral Leasing Act. 156 U.S. App. D.C. 121, 479 F.2d 842 (1973) (en banc). Finding that the NEPA issues were very complex and important, that deciding them was not necessary at that time since pipeline construction would be enjoined as a result of the violation of the Mineral Leasing Act, that they involved issues of fact still in dispute, and that it was desirable to expedite its decision as much as possible, the Court of Appeals declined to decide the merits of respondents’ NEPA contentions which had been rejected by the District Court. 10 Certiorari was denied here. 411 U.S. 917 (1973).
Congress then enacted legislation which amended the Mineral Leasing Act to allow the granting of the permits sought by Alyeska 11 and declared that no further action [421 U.S. 240, 245] under the NEPA was necessary before construction of the pipeline could proceed. 12
With the merits of the litigation effectively terminated by this legislation, the Court of Appeals turned to the questions involved in respondents’ request for an award of attorneys’ fees. 13 161 U.S. App. D.C. 446, 495 F.2d 1026 (1974) (en banc). Since there was no applicable statutory authorization for such an award, the court proceeded to consider whether the requested fee award fell within any of the exceptions to the general “American rule” that the prevailing party may not recover attorneys’ fees as costs or otherwise. The exception for an award against a party who had acted in bad faith was inapposite, since the position taken by the federal and state parties and Alyeska “was manifestly reasonable and assumed in good faith . . . .” Id., at 449, 495 F.2d, at 1029. Application of the “common benefit” exception which spreads the cost of litigation to those persons benefiting from it would “stretch it totally outside its basic rationale . . . .” Ibid. 14 The Court of Appeals nevertheless held that respondents had acted to vindicate “important statutory rights of all citizens . . .,” id., at 452, 495 F.2d, at 1032; had ensured that the governmental system functioned properly; and were entitled to attorneys’ fees lest the great cost of litigation of this kind, particularly against well-financed defendants such as [421 U.S. 240, 246] Alyeska, deter private parties desiring to see the laws protecting the environment properly enforced. Title 28 U.S.C. 2412 15 was thought to bar taxing any attorneys’ fees against the United States, and it was also deemed inappropriate to burden the State of Alaska with any part of the award. 16 But Alyeska, the Court of Appeals held, could fairly be required to pay one-half of the full award to which respondents were entitled for having performed the functions of a private attorney general. Observing that “[t]he fee should represent the reasonable value of the services rendered, taking into account all the surrounding circumstances, including, but not limited to, the time and labor required on the case, the benefit to the public, the skill demanded by the novelty or complexity of the issues, and the incentive factor,” 161 U.S. App. D.C., at 456, 495 F.2d, at 1036, the Court of Appeals remanded the case to the District Court for assessment of the dollar amount of the award. 17 [421 U.S. 240, 247]
II
In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser. We are asked to fashion a far-reaching exception to this “American Rule”; but having considered its origin and development, we are convinced that it would be inappropriate for the Judiciary, without legislative guidance, to reallocate the burdens of litigation in the manner and to the extent urged by respondents and approved by the Court of Appeals.
At common law, costs were not allowed; but for centuries in England there has been statutory authorization to award costs, including attorneys’ fees. Although the matter is in the discretion of the court, counsel fees are regularly allowed to the prevailing party. 18
During the first years of the federal-court system, Congress provided through legislation that the federal courts were to follow the practice with respect to awarding [421 U.S. 240, 248] attorneys’ fees of the courts of the States in which the federal courts were located, 19 with the exception of district courts under admiralty and maritime jurisdiction [421 U.S. 240, 249] which were to follow a specific fee schedule. 20 Those statutes, by 1800, had either expired or been repealed.
In 1796, this Court appears to have ruled that the Judiciary itself would not create a general rule, independent of any statute, allowing awards of attorneys’ fees in federal courts. In Arcambel v. Wiseman, 3 Dall. 306, the inclusion of attorneys’ fees as damages 21 was overturned on the ground that “[t]he general practice of the United States is in oposition [sic] to it; and even if that practice [421 U.S. 240, 250] were not strictly correct in principle, it is entitled to the respect of the court, till it is changed, or modified, by statute.” This Court has consistently adhered to that early holding. See Day v. Woodworth, 13 How. 363 (1852); Oelrichs v. Spain, 15 Wall. 211 (1872); Flanders v. Tweed, 15 Wall. 450 (1873); Stewart v. Sonneborn, 98 U.S. 187 (1879); Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 717 -718 (1967); F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc., 417 U.S. 116, 126 -131 (1974).
The practice after 1799 and until 1853 continued as before, that is, with the federal courts referring to the state rules governing awards of counsel fees, although the express legislative authorization for that practice had expired. 22 By legislation in 1842, Congress did give this Court authority to prescribe the items and amounts of costs which could be taxed in federal courts, but the Court took no action under this statutory mandate. 23 [421 U.S. 240, 251] See S. Law, The Jurisdiction and Powers of the United States Courts 271 n. 1 (1852).
In 1853, Congress undertook to standardize the costs allowable in federal litigation. In support of the proposed legislation, it was asserted that there was great diversity in practice among the courts and that losing litigants were being unfairly saddled with exorbitant fees for the victor’s attorney. 24 The result was a far-reaching [421 U.S. 240, 252] Act specifying in detail the nature and amount of the taxable items of cost in the federal courts. One of its purposes was to limit allowances for attorneys’ fees that were to be charged to the losing parties. Although the Act disclaimed any intention to limit the amount of fees that an attorney and his client might agree upon between themselves, counsel fees collectible from the losing party were expressly limited to the amounts stated in the Act:
-
- “That in lieu of the compensation now allowed by law to attorneys, solicitors, and proctors in the United States courts, to United States district attorneys, clerks of the district and circuit courts, marshals, witnesses, jurors, commissioners, and printers, in the several States, the following and no other compensation shall be taxed and allowed. But this act shall not be construed to prohibit attorneys, solicitors, and proctors from charging to and receiving from their clients, other than the Government,
- such reasonable compensation for their services, in addition to the taxable costs, as may be in accordance with general usage in their respective States, or may be agreed upon between the parties.” Act of Feb. 26, 1853, 10 Stat. 161.
The Act then proceeds to list specific sums for the services of attorneys, solicitors, and proctors. 25
The intention of the Act to control the attorneys’ fees recoverable by the prevailing party from the loser was repeatedly enforced by this Court. In The Baltimore, 8 Wall. 377 (1869), a $500 allowance for counsel was set aside, the Court reviewing the history of costs in the United States courts and concluding:
- “Fees and costs, allowed to the officers therein named, are now regulated by the act of the 26th of February, 1853, which provides, in its 1st section, that in lieu of the compensation now allowed by law to attorneys, solicitors, proctors, district attorneys, clerks, marshals, witnesses, jurors, commissioners, and printers, the following and no other compensation shall be allowed.
-
- “Attorneys, solicitors, and proctors may charge their
- clients reasonably for their services, in addition to the taxable costs, but nothing can be taxed as cost against the opposite party, as an incident to the judgment, for their services, except the costs and fees therein described and enumerated. They may tax a docket fee of twenty dollars on a final hearing in admiralty, if the libellant recovers fifty dollars, but if he recovers less than fifty dollars, the docket fee of the proctor shall be but ten dollars.” Id., at 392 (footnotes omitted).
In Flanders v. Tweed, 15 Wall. 450 (1872), a counsel’s fee of $6,000 was included by the jury in the damages award. The Court held the Act forbade such allowances:
- “Fees and costs allowed to officers therein named are now regulated by the act of Congress passed for that purpose, which provides in its first section, that, in lieu of the compensation previously allowed by law to attorneys, solicitors, proctors, district attorneys, clerks, marshals, witnesses, jurors, commissioners, and printers, the following and no other compensation shall be allowed. Attorneys, solicitors, and proctors may charge their clients reasonably for their services, in addition to the taxable costs, but nothing can be taxed or recovered as cost against the opposite party, as an incident to the judgment, for their services, except the costs and fees therein described and enumerated. They may tax a docket fee of twenty dollars in a trial before a jury, but they are restricted to a charge of ten dollars in cases at law, where judgment is rendered without a jury.” Id., at 452-453 (footnote omitted).
See also In re Paschal, 10 Wall. 483, 493-494 (1871).
Although, as will be seen, Congress has made specific provision for attorneys’ fees under certain federal statutes, [421 U.S. 240, 255] it has not changed the general statutory rule that allowances for counsel fees are limited to the sums specified by the costs statute. The 1853 Act was carried forward in the Revised Statutes of 1874 26 and by the Judicial Code of 1911. 27 Its substance, without any apparent intent to change the controlling rules, was also included in the Revised Code of 1948 as 28 U.S.C. 1920 28 and 1923 (a). 29 Under 1920, a court may tax as costs the [421 U.S. 240, 256] various items specified, including the “docket fees” under 1923 (a). That section provides that “[a]ttorney’s and proctor’s docket fees in courts of the United States may [421 U.S. 240, 257] be taxed as costs as follows . . . .” Against this background, this Court understandably declared in 1967 that with the exception of the small amounts allowed by 1923, the rule “has long been that attorney’s fees are not ordinarily recoverable . . . .” Fleischmann Distilling Corp., 386 U.S., at 717 . Other recent cases have also reaffirmed the general rule that, absent statute or enforceable contract, litigants pay their own attorneys’ fees. See F. D. Rich Co., 417 U.S., at 128 -131; Hall v. Cole, 412 U.S. 1, 4 (1973).
To be sure, the fee statutes have been construed to allow, in limited circumstances, a reasonable attorneys’ fee to the prevailing party in excess of the small sums permitted by 1923. In Trustees v. Greenough, 105 U.S. 527 (1882), the 1853 Act was read as not interfering with the historic power of equity to permit the trustee of a fund or property, or a party preserving or recovering a fund for the benefit of others in addition to himself, to recover his costs, including his attorneys’ fees, from the fund or property itself or directly from the other parties enjoying the benefit. 30 That rule has been consistently [421 U.S. 240, 258] followed. Central Railroad & Banking Co. v. Pettus, 113 U.S. 116 (1885); Harrison v. Perea, 168 U.S. 311, 325 -326 (1897); United States v. Equitable Trust Co., 283 U.S. 738 (1931); Sprague v. Ticonic National Bank, 307 U.S. 161 (1939); Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970); Hall v. Cole, supra; cf. Hobbs v. McLean, 117 U.S. 567, 581 -582 (1886). See generally Dawson, Lawyers and Involuntary Clients: Attorney Fees From Funds, 87 Harv. L. Rev. 1597 (1974). Also, a court may assess attorneys’ fees for the “willful disobedience of a court order . . . as part of the fine to be levied on the defendant[,] Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426 -428 (1923),” Fleischmann Distilling Corp. v. Maier Brewing Co., supra, at 718; or when the losing party has “acted in bad faith, [421 U.S. 240, 259] vexatiously, wantonly, or for oppressive reasons . . . .” F. D. Rich Co., 417 U.S., at 129 (citing Vaughan v. Atkinson, 369 U.S. 527 (1962); cf. Universal Oil Products Co. v. Root Refining Co., 328 U.S. 575, 580 (1946). These exceptions are unquestionably assertions of inherent power in the courts to allow attorneys’ fees in particular situations, unless forbidden by Congress, but none of the exceptions is involved here. 31 The Court of [421 U.S. 240, 260] Appeals expressly disclaimed reliance on any of them. See supra, at 245.
Congress has not repudiated the judicially fashioned exceptions to the general rule against allowing substantial attorneys’ fees; but neither has it retracted, repealed, or modified the limitations on taxable fees contained in the 1853 statute and its successors. 32 Nor has it extended any roving authority to the Judiciary to allow counsel fees as costs or otherwise whenever the courts might deem them warranted. What Congress has done, however, while fully recognizing and accepting the general rule, is to make specific and explicit provisions for the allowance of attorneys’ fees under selected statutes granting or protecting various federal rights. 33 These statutory [421 U.S. 240, 261] allowances are now available in a variety of circumstances, but they also differ considerably among themselves. Under the antitrust laws, for instance, allowance of attorneys’ fees to a plaintiff awarded treble damages is mandatory. 34 In patent litigation, in contrast, “[t]he court in exceptional cases may award reasonable attorney fees to the prevailing party.” 35 U.S.C. 285 (emphasis added). Under Title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a-3 (b), 35 the prevailing [421 U.S. 240, 262] party is entitled to attorneys’ fees, at the discretion of the court, but we have held that Congress intended that the award should be made to the successful plaintiff absent exceptional circumstances. Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 402 (1968). See also Northcross v. Board of Education of the Memphis City Schools, 412 U.S. 427 (1973). Under this scheme of things, it is apparent that the circumstances under which attorneys’ fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine. 36 [421 U.S. 240, 263]
It is true that under some, if not most, of the statutes providing for the allowance of reasonable fees, Congress has opted to rely heavily on private enforcement to implement public policy and to allow counsel fees so as to encourage private litigation. Fee shifting in connection with treble-damages awards under the antitrust laws is a prime example; cf. Hawaii v. Standard Oil Co., 405 U.S. 251, 265 -266 (1972); and we have noted that Title II of the Civil Rights Act of 1964 was intended “not simply to penalize litigants who deliberately advance arguments they know to be untenable but, more broadly, to encourage individuals injured by racial discrimination to seek judicial relief under Title II.” Newman, supra, at 402 (footnote omitted). But congressional utilization of the private-attorney-general concept can in no sense be construed as a grant of authority to the Judiciary to jettison the traditional rule against nonstatutory allowances to the prevailing party and to award attorneys’ fees whenever the courts deem the public policy furthered by a particular statute important enough to warrant the award.
Congress itself presumably has the power and judgment to pick and choose among its statutes and to allow attorneys’ fees under some, but not others. But it would be difficult, indeed, for the courts, without legislative [421 U.S. 240, 264] guidance, to consider some statutes important and others unimportant and to allow attorneys’ fees only in connection with the former. If the statutory limitation of right-of-way widths involved in this case is a matter of the gravest importance, it would appear that a wide range of statutes would arguably satisfy the criterion of public importance and justify an award of attorneys’ fees to the private litigant. And, if any statutory policy is deemed so important that its enforcement must be encouraged by awards of attorneys’ fees, how could a court deny attorneys’ fees to private litigants in actions under 42 U.S.C. 1983 seeking to vindicate constitutional rights? Moreover, should courts, if they were to embark on the course urged by respondents, opt for awards to the prevailing party, whether plaintiff or defendant, or only to the prevailing plaintiff? 37 Should awards be discretionary or mandatory? 38 Would there be a presumption operating for or against them in the ordinary case? See Newman, supra. 39 [421 U.S. 240, 265]
As exemplified by this case itself, it is also evident that the rational application of the private-attorney-general rule would immediately collide with the express provision [421 U.S. 240, 266] of 28 U.S.C. 2412. 40 Except as otherwise provided by statute, that section permits costs to be taxed against the United States, “but not including the fees and expenses [421 U.S. 240, 267] of attorneys,” in any civil action brought by or against the United States or any agency or official of the United States acting in an official capacity. If, as respondents argue, one of the main functions of a private attorney general is to call public officials to account and to insist that they enforce the law, it would follow in such cases that attorneys’ fees should be awarded against the Government or the officials themselves. Indeed, that very claim was asserted in this case. 41 But 2412 on its face, and in light of its legislative history, generally bars such awards, 42 which, if allowable at all, must be expressly [421 U.S. 240, 268] provided for by statute, as, for example, under Title II of the Civil Rights Act of 1964, 42 U.S.C. 2000a-3 (b). 43 [421 U.S. 240, 269]
We need labor the matter no further. It appears to us that the rule suggested here and adopted by the Court of Appeals would make major inroads on a policy matter that Congress has reserved for itself. Since the approach taken by Congress to this issue has been to carve out specific exceptions to a general rule that federal courts cannot award attorneys’ fees beyond the limits of 28 U.S.C. 1923, those courts are not free to fashion drastic new rules with respect to the allowance of attorneys’ fees to the prevailing party in federal litigation or to pick and choose among plaintiffs and the statutes under which they sue and to award fees in some cases but not in others, depending upon the courts’ assessment of the importance of the public policies involved in particular cases. Nor should the federal courts purport to adopt on their own initiative a rule awarding attorneys’ fees based on the private-attorney-general approach when such judicial rule will operate only against private parties and not against the Government. 44 [421 U.S. 240, 270]
We do not purport to assess the merits or demerits of the “American Rule” with respect to the allowance of attorneys’ fees. It has been criticized in recent years, 45 and courts have been urged to find exceptions to it. 46 [421 U.S. 240, 271] It is also apparent from our national experience that the encouragement of private action to implement public policy has been viewed as desirable in a variety of circumstances. But the rule followed in our courts with respect to attorneys’ fees has survived. It is deeply rooted in our history and in congressional policy; and it is not for us to invade the legislature’s province by redistributing litigation costs in the manner suggested by respondents and followed by the Court of Appeals. 47
