Alyeska Pipeline Svc. Co. v. Wilderness Soc'y
421 U.S. 240 (1975)

Annotate this Case

U.S. Supreme Court

Alyeska Pipeline Svc. Co. v. Wilderness Soc'y, 421 U.S. 240 (1975)

Alyeska Pipeline Service Co. v. Wilderness Society

No. 73-1977

Argued January 22, 1975

Decided May 12, 1975

421 U.S. 240

CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

Under the "American Rule" that attorneys' fees are not ordinarily recoverable by the prevailing litigant in federal litigation in the absence of statutory authorization, respondents, which had instituted litigation to prevent issuance of Government permits required for construction of the trans-Alaska oil pipeline, cannot recover attorneys' fees from petitioner based on the "private attorney general" approach erroneously approved by the Court of Appeals, since only Congress, not the courts, can authorize such an exception to the American rule. Pp. 421 U. S. 247-271.

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. 421 U. S. 271, and MARSHALL, J., post, p. 421 U. S. 272, filed dissenting opinions. DOUGLAS and POWELL, JJ., took no part in the consideration or decision of the case.

Page 421 U. S. 241

MR. JUSTICE WHITE delivered the opinion of the Court.

This litigation was initiated by respondents Wilderness Society, Environmental Defense Fund, Inc., and Friend 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 power 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. [Footnote 1] In June, 1969, the oil companies constituting the consortium owning Alyeska [Footnote 2] submitted an

Page 421 U. S. 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, [Footnote 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. [Footnote 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, [Footnote 5] and without

Page 421 U. S. 243

compliance with the National Environmental Policy Act of 1969 (NEPA), 83 Stat. 852, 42 U.S.C. § 4321 et seq. [Footnote 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. [Footnote 7] On March 20, 1972, the Interior Department released a six-volume Environmental Impact Statement and a three-volume Economic

Page 421 U. S. 244

and Security Analysis. [Footnote 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. [Footnote 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. [Footnote 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, [Footnote 11] and declared that no further action

Page 421 U. S. 245

under the NEPA was necessary before construction of the pipeline could proceed. [Footnote 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. [Footnote 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. [Footnote 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

Page 421 U. S. 246

Alyeska, deter private parties desiring to see the laws protecting the environment properly enforced. Title 28 U.S.C. § 2412 [Footnote 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. [Footnote 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. [Footnote 17]

Page 421 U. S. 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. [Footnote 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

Page 421 U. S. 248

attorneys' fees of the courts of the States in which the federal courts were located, [Footnote 19] with the exception of district courts under admiralty and maritime jurisdiction

Page 421 U. S. 249

which were to follow a specific fee schedule. [Footnote 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 [Footnote 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

Page 421 U. S. 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, 386 U. S. 717-718 (1967); F. D. Rich Co., Inc. v. United States ex rel. Industrial Lumber Co., Inc.,417 U. S. 116, 417 U. S. 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. [Footnote 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. [Footnote 23]

Page 421 U. S. 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. [Footnote 24] The result was a far-reaching

Page 421 U. S. 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,

Page 421 U. S. 253

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. [Footnote 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

Page 421 U. S. 254

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 that 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 82 U. S. 452-453 (footnote omitted). See also In re Paschal, 10 Wall. 483, 77 U. S. 494-494 (1871).

Although, as will be seen, Congress has made specific provision for attorneys' fees under certain federal statutes,

Page 421 U. S. 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 [Footnote 26] and by the Judicial ode of 1911. [Footnote 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 [Footnote 28] and 1923(a). [Footnote 29] Under § 1920, a court may tax as costs the

Page 421 U. S. 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

Page 421 U. S. 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 386 U. S. 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 417 U. S. 128-131; Hall v. Cole,412 U. S. 1, 412 U. S. 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. [Footnote 30] That rule has been consistently

Page 421 U. S. 258

followed. Central Railroad & Banking Co. v. Pettus,113 U. S. 116 (1885); Harrison v. Perea,168 U. S. 311, 168 U. S. 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, 117 U. S. 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, 261 U. S. 426-428 (1923),"

Fleischmann Distilling Corp. v. Maier Brewing Co., supra, at 386 U. S. 718; or when the losing party has "acted in bad faith,

Page 421 U. S. 259

vexatiously, wantonly, or for oppressive reasons. . . ." F. D. Rich Co., 417 U.S. at 417 U. S. 129 (citing Vaughan v. Atkinson,369 U. S. 527 (1962)); cf. Universal Oil Products Co. v. Root Refining Co.,328 U. S. 575, 328 U. S. 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. [Footnote 31] The Court of

Page 421 U. S. 260

Appeals expressly disclaimed reliance on any of them. See supra at 421 U. S. 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. [Footnote 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 right. [Footnote 33] These statutory

Page 421 U. S. 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. [Footnote 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 194, 42 US.C. § 2000a-(b), [Footnote 35] the prevailing

Page 421 U. S. 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, 390 U. S. 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. [Footnote 36]

Page 421 U. S. 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, 405 U. S. 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 390 U. S. 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

Page 421 U. S. 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? [Footnote 37] Should awards be discretionary or mandatory? [Footnote 38] Would there be a presumption operating for or against them in the ordinary case? See Newman, supra. [Footnote 39]

Page 421 U. S. 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

Page 421 U. S. 266

of 28 U.S.C. § 2412. [Footnote 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

Page 421 U. S. 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. [Footnote 41] But § 2412, on its face and in light of its legislative history, generally bars such awards, [Footnote 42] which, if allowable at all, must be expressly

Page 421 U. S. 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). [Footnote 43]

Page 421 U. S. 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. [Footnote 44]

Page 421 U. S. 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, [Footnote 45] and courts have been urged to find exceptions to it. [Footnote 46]

Page 421 U. S. 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. [Footnote 47]

The decision below must therefore be reversed.

So ordered.

MR. JUSTICE DOUGLAS and MR. JUSTICE POWELL took no part in the consideration or decision of this case.

[Footnote 1]

For a discussion and chronology of the events surrounding this litigation, see Dominick & Brody, The Alaska Pipeline: Wilderness Society v. Morton and the Trans-Alaska Pipeline Authorization Act, 23 Am.U.L.Rev. 337 (1973).

[Footnote 2]

In 1968, Atlantic Richfield Co., Humble Oil & Refining Co., and British Petroleum Corp. formed the Trans-Alaska Pipeline System, and it was this entity which submitted the applications for the permits. Federal Task Force on Alaskan Oil Development: A Preliminary Report to the President (1969), in App 80; Dominick & Brody, supra,n 1, at 337-338, n. 3. In 1970, the Trans-Alaska Pipeline System was replaced by petitioner Alyeska. Alyeska's stock is owned by ARCO Pipeline Co., Sohio Pipeline Co., Humble Pipeline Co., Mobil Pipeline Co., Phillips Petroleum Co., Amerada Hess Corp., and Union Oil Co. of California. See id. at 338 n. 3; App. 105.

[Footnote 3]

The application requested a primary right-of-way of 54 feet, an additional parallel, adjacent right-of-way for construction purposes of 46 feet, and another right-of-way of 100 feet for a construction road between Prudhoe Bay on the North Slope to the town of Livengood, a distance slightly less than half the length of the proposed pipeline See Wilderness Society v. Morton, 156 U.S.App.D.C. 121, 128, 479 F.2d 842, 849 (1973).

[Footnote 4]

The amended application asked for a single 54-foot right-of-way, a special land use permit for an additional 11 feet on one side and 35 feet on the other side of the right-of-way, and another special land use permit for a space 200 feet in width between Prudhoe Bay and Livengood. Id. at 128-129, 479 F.2d at 849-850; App. 89-98.

[Footnote 5]

Title 30 U.S.C. § 185 provided in pertinent part:

"Rights-of-way through the public lands, including the forest reserves of the United States, may be granted by the Secretary of the Interior for pipeline purposes for the transportation of oil or natural gas to any applicant possessing the [prescribed] qualifications . . . to the extent of the ground occupied by the said pipe line and twenty-five feet on each side of the same under such regulations and conditions as to survey, location, application, and use as may be prescribed by the Secretary of the Interior and upon the express condition that such pipe lines shall be constructed, operated, and maintained as common carriers and shall accept, convey, transport, or purchase without discrimination, oil or natural gas produced from Government lands in the vicinity of the pipe line in such proportionate amounts as the Secretary of the Interior may, after a full hearing with due notice thereof to the interested parties and a proper finding of facts, determine to be reasonable: . . . Provided further, That no right-of-way shall hereafter be granted over said lands for the transportation of oil or natural gas except under and subject to the provisions, limitations, and conditions of this section. Failure to comply with the provisions of this section or the regulations and conditions prescribed by the Secretary of the Interior shall be ground for forfeiture of the grant by the United States district court for the district in which the property, or some part thereof, is located in an appropriate proceeding."

[Footnote 6]

The Court of Appeals described the heart of respondents' NEPA contention to be that the Secretary did not adequately consider the alternative of a trans-Canada pipeline. 156 U.S.App.D.C. at 166-168, 479 F.2d at 887-889.

[Footnote 7]

The interventions occurred in September, 1971, approximately 17 months after the District Court had granted the preliminary injunction preventing issuance of the right-of-way and permits by the Secretary.

[Footnote 8]

The Department of the Interior had released a draft impact statement in January, 1971.

[Footnote 9]

The decision is not reported. See id. at 130, 479 F.2d at 851.

[Footnote 10]

At the same time, the Court of Appeals upheld the grant of certain rights-of-way to the State of Alaska. Id. at 158-163, 479 F.2d at 879-884. It also considered a challenge to a special land use permit issued by the Forest Supervisor to Alyeska's predecessor, but did not find the issue ripe for adjudication. Id. at 163-166, 479 F.2d at 884-887.

[Footnote 11]

Pub.L. 93-153, Tit. I, § 101, 87 Stat. 576, 30 U.S.C. § 185 (1970 ed., Supp. III).

[Footnote 12]

Trans-Alaska Pipeline Authorization Act, Pub.L. 93-153, Tit. II, 87 Stat. 54, 43 U.S.C. § 1651 et seq. (1970 ed., Supp. III).

[Footnote 13]

Respondents' bill of costs includes a total of 4,455 hours of attorneys' time spent on the litigation. App. 209-219.

[Footnote 14]

"[T]his litigation may well have provided substantial benefits to particular individuals and, indeed, to every citizen's interest in the proper functioning of our system of government. But imposing attorneys' fees on Alyeska will not operate to spread the costs of litigation proportionately among these beneficiaries. . . ."

161 U.S.App.D.C. at 449, 495 F.2d at 1029.

[Footnote 15]

Seen 40, infra.

[Footnote 16]

"In the circumstances of this case, it would be inappropriate to tax fees against appellee State of Alaska. The State voluntarily participated in this suit, in effect to present to the court a different version of the public interest implications of the trans-Alaska pipeline. Taxing attorneys' fees against Alaska would, in our view, undermine, rather than further, the goal of ensuring adequate spokesmen for public interests."

161 U.S.App.D.C. at 456 n. 8, 495 F.2d at 1036 n. 8.

[Footnote 17]

The Court of Appeals also directed that

"[t]he fee award need not be limited . . . to the amount actually paid or owed by [respondents]. It may well be that counsel serve organizations like [respondents] for compensation below that obtainable in the market because they believe the organizations further a public interest. Litigation of this sort should not have to rely on the charity of counsel any more than it should rely on the charity of parties volunteering to serve as private attorneys general. The attorneys who worked on this case should be reimbursed the reasonable value of their services, despite the absence of any obligation on the part of [respondents] to pay attorneys' fees."

Id. at 457, 495 F.2d at 1037.

[Footnote 18]

"As early as 1278, the courts of England were authorized to award counsel fees to successful plaintiffs in litigation. Similarly, since 1607, English courts have been empowered to award counsel fees to defendants in all actions where such awards might be made to plaintiffs. Rules governing administration of these and related provisions have developed over the years. It is now customary in England, after litigation of substantive claims has terminated, to conduct separate hearings before special 'taxing Masters' in order to determine the appropriateness and the size of an award of counsel fees. To prevent the ancillary proceedings from becoming unduly protracted and burdensome, fees which may be included in an award are usually prescribed, even including the amounts that may be recovered for letters drafted on behalf of a client."

Fleischmann Distilling Corp. v. Maier Brewing Co.,386 U. S. 714, 386 U. S. 717 (1967) (footnotes omitted). See generally Goodhart, Costs, 38 Yale L.J. 849 (1929); C. McCormick, Law of Damages 234-236 (1935).

[Footnote 19]

The Federal Judiciary Act of Sept. 24, 1789, 1 Stat. 73, touched upon costs in §§ 9, 11-12, 20-23, but, as to counsel fees, provided specifically only that the United States Attorney in each district

"shall receive as a compensation for his services such fees as shall be taxed therefor in the respective courts before which the suits or prosecutions shall be."

§ 35. Five days later, however, Congress enacted legislation regulating federal court processes, which provided:

"That until further provision shall be made, and except where by this act or other statutes of the United States is otherwise provided . . . , rates of fees, except fees to judges, in the circuit and district courts, in suits at common law, shall be the same in each state respectively as are now used or allowed in the supreme courts of the same. And . . . [in causes of equity and of admiralty and maritime jurisdiction,] the rates of fees [shall be] the same as are or were last allowed by the states respectively in the court exercising supreme jurisdiction in such causes."

Act of Sept. 29, 1789, § 2, 1 Stat. 93. That legislation was to be in effect only until the end of the next congressional session, § 3, but it was extended twice. See Act of May 26, 1790, c. 13, 1 Stat. 123; Act of Feb. 18, 1791, c. 8, 1 Stat.191. It was repealed, however, by legislation enacted on May 8, 1792, § 8, 1 Stat. 278.

Prior to the time of that repeal, other legislation had been passed providing for additional compensation for United States Attorneys to cover traveling expenses. Act of Mar. 3, 1791, c. 22, § 1, 1 Stat. 216. That legislation was also repealed by the Act of May 8, 1792, supra. The latter enactment substituted a new provision for the compensation of United States Attorneys; they would be entitled to "such fees in each state respectively as are allowed in the supreme courts of the same . . . " plus certain traveling expenses, § 3, 1 Stat. 277. That provision was repealed on February 28, 1799. § 9, 1 Stat. 626. That same statute provided new, specific rates of compensation for United States Attorneys. See § 4. See also § 5.

On March 1, 1793, Congress enacted a general provision governing the awarding of costs to prevailing parties in federal courts:

"That there be allowed and taxed in the supreme, circuit and district courts of the United States, in favour of the parties obtaining judgments therein, such compensation for their travel and attendance, and for attornies' and counselors' fees, except in the district courts in cases of admiralty and maritime jurisdiction, as are allowed in the supreme or superior courts of the respective states."

§ 4, 1 Stat. 333. This provision was to be in force for one year, and then to the end of the next session of Congress, § 5, but it was continued in effect in 1795, Act of Feb. 25, 1795, c. 28, 1 Stat. 419, and again in 1796, Act of Mar. 31, 1796, 1 Stat. 451, for a period of two years, and then until the end of the next session of Congress; at that point, it expired.

After 1799 and until 1853, no other congressional legislation dealt with the awarding of attorneys' fees in federal courts except for the Act of 1842, n 23, infra, which gave this Court authority to prescribe taxable attorneys' fees, and for legislation dealing with the compensation for United States Attorneys. See the Act of Mar. 3, 1841, 5 Stat. 427, and the Act of May 18, 1842, 5 Stat. 483. See the summary of the legislation dealing with costs throughout this period, in S. Law, The Jurisdiction and Powers of the United States Courts 255-282 (1852).

[Footnote 20]

By the legislation of September 29, 1789, the federal courts were to follow the state practice with respect to rates of fees under admiralty and maritime jurisdiction. Seen19, supra. The Act of Mar. 1, 1793, § 1, 1 Stat. 332, established set fees for attorneys in the district courts in admiralty and maritime proceedings. As with § 4 of that Act, n19, supra, this provision had expired by the end of the century. See The Baltimore, 8 Wall. 377, 75 U. S. 390-392 (1869).

[Footnote 21]

The Circuit Court had allowed $1,600 in counsel fees under its estimate of damages and $28.89 as costs. Record in Arcambel 56.

[Footnote 22]

See 2 T. Street, Federal Equity Practice § 1986, pp. 1188-1189 (1909); Law, supra,n19, at 279; Costs in Civil Cases, 30 F.Cas. 1058 (No.18,284) (CCSDNY 1852).

[Footnote 23]

"That, for the purpose of further diminishing the costs and expenses in suits and proceedings in the said courts, the Supreme Court shall have full power and authority, from time to time, to make and prescribe regulations to the said district and circuit courts, as to the taxation and payment of costs in all suits and proceedings therein; and to make and prescribe a table of the various items of costs which shall be taxable and allowed in all suits, to the parties, their attorneys, solicitors, and proctors, to the clerk of the court, to the marshal of the district, and his deputies, and other officers serving process, to witnesses, and to all other persons whose services are usually taxable in bills of costs. And the items so stated in the said table, and none others, shall be taxable or allowed in bills of costs; and they shall be fixed as low as they reasonably can be, with a due regard to the nature of the duties and services which shall be performed by the various officers and persons aforesaid, and shall in no case exceed the costs and expenses now authorized, where the same are provided for by existing laws."

Act of Aug. 23, 1842, § 7, 5 Stat. 518.

The brief legislative history of this section indicates that, as its own language states, its purpose was to reduce fee-bills in federal courts. Cong.Globe, 27th Cong., 2d Sess., 723 (1842) (remarks of Sen. Berrien). One of its opponents, Senator Buchanan, said the following:

"If Congress conforms the fee-bills of the courts over which it has control, to the fee-bills of the State courts, that is all that can be expected of it. . . . But the great and main objection was its transfer of the legislative power of Congress to the Supreme Court."

Ibid.

[Footnote 24]

See the remarks of Senator Bradbury, Cong.Globe App. 32d Cong., 2d Sess., 207 (1853):

"There is now no uniform rule either for compensating the ministerial officers of the courts or for the regulation of the costs in actions between private suitors. One system prevails in one district, and a totally different one in another; and in some cases it would be difficult to ascertain that any attention had been paid to any law whatever designed to regulate such proceedings. . . . It will hence be seen that the compensation of the officers, and the costs taxed in civil suits, is made to depend in a great degree on that allowed in the State courts. There are no two States where the allowance is the same."

"When this system was adopted, it had the semblance of equality, which does not now exist. There were then but sixteen States, in all of which the laws prescribed certain taxable costs to attorneys for the prosecution and defense of suits. In several of the States which have since been added to the Union, no such cost is allowed, and, in others, the amount is inconsiderable. As the State fee bills are made so far the rule of compensation in the Federal courts, the Senate will perceive that totally different systems of taxation prevail in the different districts. . . . It is not only the officers of the courts, but the suitors also, that are affected by the present unequal, extravagant, and often oppressive system."

"* * * *"

"The abuses that have grown up in the taxation of attorneys' fees which the losing party has been compelled to pay in civil suits, have been a matter of serious complaint. The papers before the committee show that, in some cases, those costs have been swelled to an amount exceedingly oppressive to suitors and altogether disproportionate to the magnitude and importance of the causes in which they are taxed or the labor bestowed. . . ."

"* * * *"

"It is to correct the evils and remedy the defects of the present system that the bill has been prepared and passed by the House of Representatives. It attempts to simplify the taxation of fees, by prescribing a limited number of definite items to be allowed. . . ."

See also H.R.Rep. No. 50, 32d Cong., 1st Sess. (1852); 2 Street, supra,n 22, § 1987, p. 1189.

[Footnote 25]

"Fees of Attorneys, Solicitors, and Proctors. In a trial before a jury, in civil and criminal causes, or before referees, or on a final hearing in equity or admiralty, a docket fee of twenty dollars: Provided, That in cases in admiralty and maritime jurisdiction, where the libellant shall recover less than fifty dollars, the docket fee of his proctor shall be but ten dollars."

"In cases at law, where judgment is rendered without a jury, ten dollars, and five dollars where a cause is discontinued."

"For scire facias and other proceedings on recognizances, five dollars."

"For each deposition taken and admitted as evidence in the cause, two dollars and fifty cents."

"A compensation of five dollars shall be allowed for the services rendered in cases removed from a district to a circuit court by writ of error or appeal. . . ."

10 Stat. 161-162.

[Footnote 26]

"The following and no other compensation shall be taxed and allowed to attorneys, solicitors, and proctors in the courts of the United States, to district attorneys, clerks of the circuit and district courts, marshals, commissioners, witnesses, jurors, and printers in the several States and Territories, except in cases otherwise expressly provided by law. But nothing herein shall 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."

Rev.Stat. § 823. For the schedule of fees, see § 824. The schedule remained the same as the one in the 1853 Act, n 25, supra.

[Footnote 27]

Revised Stat. §§ 823 and 824 were not repealed by the Judicial Code of 1911, and hence were to "remain in force with the same effect and to the same extent as if this Act had not been passed." § 297, 36 Stat. 1169. When the Judicial Code was included under Title 28 of the United States Code in 1926, these sections appeared as §§ 571 and 572, with but minor changes in wording, including the deletion from the latter section of the compensation for services rendered in a case which went to the circuit court on appeal or writ of error.

[Footnote 28]

"A judge or clerk of any court of the United States may tax as costs the following:"

"* * * *"

"(5) Docket fees under section 1923 of this title."

28 U.S.C. § 1920 (1946 ed., Supp. II).

[Footnote 29]

"(a) Attorney's and proctor's docket fees in courts of the United States may be taxed as costs as follows:"

"$20 on trial or final hearing in civil, criminal or admiralty cases, except that, in cases of admiralty and maritime jurisdiction where the libellant recovers less than $50, the proctor's docket fee shall be $10;"

"$20 in admiralty appeals involving not over $1,000;"

"$50 in admiralty appeals involving not over $5,000;"

"$100 in admiralty appeals involving more than $5,000;"

"$5 on discontinuance of a civil action;"

"$5 on motion for judgment and other proceedings on recognizances;"

"$2.50 for each deposition admitted in evidence."

28 U.S.C. § 1923(a) (1946 ed., Supp. II).

The 1948 Code does not contain the language used in the 1853 Act and carried on for nearly 100 years that the fees prescribed by the statute "and no other compensation shall be taxed and allowed," but nothing in the 1948 Code indicates a congressional intention to depart from that rule. The Reviser's Note to the new § 1923 states only that the "[s]ection consolidates sections 571, 572, and 578 of title 28, U.S.C.1940 ed." Section 571 was the provision limiting awards to the fees prescribed by § 572. Seen 27, supra. Our conclusion that the 1948 Code did not change the longstanding rule limiting awards of attorneys' fees to the statutorily provided amounts is consistent with our established view that

"the function of the Revisers of the 1948 Code was generally limited to that of consolidation and codification. Consequently, a well established principle governing the interpretation of provisions altered in the 1948 revision is that 'no change is to be presumed unless clearly expressed.'"

Tidewater Oil Co. v. United States,409 U. S. 151, 409 U. S. 162 (1972) (footnote omitted). As MR. JUSTICE MARSHALL noted for the Court, id. at 409 U. S. 162 n. 29, the Senate Report covering the new Code observed that "great care has been exercised to make no changes in the existing law which would not meet with substantially unanimous approval." S.Rep. No. 1559, 80th Cong., 2d Sess., 2 (1948).

The Reviser's Note to § 1920 explains the shift from the mandatory "shall be taxed" to the discretionary "may be taxed" as made

"in view of Rule 54(d) of the Federal Rules of Civil Procedure, providing for allowance of costs to the prevailing party as of course 'unless the court otherwise directs.'"

Note following 28 U.S.C. § 1920 (1946 ed., Supp. II).

[Footnote 30]

Mr. Justice Bradley, writing for the Court in Greenough, said the following of the 1853 Act:

"The fee-bill is intended to regulate only those fees and costs which are strictly chargeable as between party and party, and not to regulate the fees of counsel and other expenses and charges as between solicitor and client, nor the power of a court of equity, in cases of administration of funds under its control, to make such allowance to the parties out of the fund as justice and equity may require. The fee-bill itself expressly provides that it 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, c. 80, 10 Stat. 161; Rev.Stat., sect. 823. And the act contains nothing which can be fairly construed to deprive the Court of Chancery of its long-established control over the costs and charges of the litigation, to be exercised as equity and justice may require, including proper allowances to those who have instituted proceedings for the benefit of a general fund."

105 U.S. at 105 U. S. 535-536.

Sprague v. Ticonic National Bank,307 U. S. 161, 307 U. S. 165 n. 2 (1939), might be read as suggesting that the Court, in Greenough, said that a federal court could tax against the losing party "solicitor and client" costs in excess of the amounts prescribed by the 1853 Act. But any such suggestion is without support either in the opinion in Greenough, which was limited to a common-fund rationale, or in the express terms of the statute. Those costs were simply left unregulated by the federal statute; it did not permit taxing the "client-solicitor" costs against the client's adversary. See The Baltimore, 8 Wall. 377 (1869); Flanders v. Tweed, 15 Wall. 450 (1872); 1 R. Foster, Federal Practice §§ 328-330 (1901); A. Conkling, The Organization, Jurisdiction and Practice of the Courts of the United States 456-457 (5th ed. 1870); A. Boyce, A Manual of the Practice in the Circuit Courts 72 (1869). Cf. United States v. One Package of Ready-Made Clothing, 27 F.Cas. 310, 2 (No. 15,950) (CCSDNY 1853). MR. JUSTICE MARSHALL's reliance upon Sprague for the proposition that "client-solicitor" costs could be taxed against the client's opponent, see post at 421 U. S. 278-279, is thus misplaced and conflicts with any fair reading of Greenough, supra, and the 1853 Act.

[Footnote 31]

A very different situation is presented when a federal court sits in a diversity case.

"[I]n an ordinary diversity case where the state law does not run counter to a valid federal statute or rule of court, and usually it will not, state law denying the right to attorney's fees or giving a right thereto, which reflects a substantial policy of the state, should be followed."

6 J. Moore, Federal Practice

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