146 But these lower courts did so only after the Supreme Court provided a supportive milieu for further encroachments on the American Rule. The Court in Newman v. Piggie Park Enterprises,1 had construed Title II of the Civil Rights Act of 1964 to permit an award of attorney's fees for the purpose of encouraging the initiation of similar suits to enjoin racial discrimination in public accommodations. The Court reasoned that "[i]f [a plaintiff] obtains an injunction, he does so not for himself alone but also as a 'private attorney general' vindicating a policy that Congress considered of the highest priority." 148 Although the suit was brought under a statute that explicitly authorized fee-shifting at the discretion of the courts, Newman identified the underlying theory as that of the private attorney general and raised a presumption in favor of shifting the prevailing party's fees, rebuttable only by a showing of "special circumstances [that] would render such an award unjust." 149 ute Adopting the reasoning of Newman in a later suit brought under another stat150 that also made an award of attorneys' fees discretionary, a unanimous Court held, in Northcross v. Board of Education,151 that the plaintiffs were "private attorneys general" and thus entitled to an award of attorneys' fees.15 Even though consistent with legislative mandate, the Court's action seemed expansive, encouraging many other private attorneys general to bring similar suits. Lower federal courts, guided by this spirit, responded by awarding attorneys' fees pursuant to the private attorneys general theory under other discretionary statutes 153 and statutes silent in regard to fee-shifting. Encouraged by the Supreme Court and drawing on their own equity powers, the lower federal courts thus fashioned the private attorneys general exception to the American Rule. 166 154 Although the Supreme Court had acted, and the lower courts had quickly followed, to allow fee-shifting to encourage suits in the public interest,155 a policy that awarded fees in this area in the absence of some statutory authority was never explicitly sanctioned. Nevertheless, by awarding attorneys' fees without enunciating any specific constraints on when this was appropriate, and by mandating that other courts do the same,157 Newman and cases following it raised the hope that judicial repudiation of the American Rule, or at the least an adoption of the private attorneys general rule as a general judicial remedy in public interest litigation, would soon be a reality." 158 THE IMPACT OF ALYESKA-THE AMERICAN RULE REITERATED These repeated hopes that the American Rule would be at least modified were dashed decisively by Alyeska. In its rejection of the private attorneys general exception as a judicial discretionary remedy, the Court turned away from the Mills 19-Newman 180 enlargements and towards the views of an earlier case, Fleischmann Distilling Corp. v. Maier Brewing Co. In Fleischmann, the Court 161 145 See Northcross v. Board of Educ., 412 US. 427 (1973); Hall v. Cole, 412 U.S. 1 (1973); Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970); Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968). The Court in Alyeska did not deal with the implication of these cases; rather, it used the narrowest view of their holdings to fit them into the recognized exceptions: Mills and Hall into the common benefit exception, 421 U.S. at 258. Piggie Park and Northcross as statutorially authorized, 421 U.S. at 262. Cf. Dawson Public Interest Litigation, supra note 32, at 866-70. 148 390 U.S. 400 (1968). 147 42 U.S.C. § 2000a (1970). 148 390 U.S. at 402 (emphasis added). 149 Id. 150 The Emergency School Aid Act of 1972 § 718, 20 U.S.C. § 1617 (Supp. II, 1972). 151 412 U.S. 427 (1973). 152 Id. at 428. 153 See, e.g., Civil Rights Act of 1964 tit. VII, 42 U.S.C. § 2000e-5(k) (1970). 154 See, e.g., Mills, discussed at notes 70-74 supra; Hall discussed at notes 75-77 supra. 155 See note 145 supra. 156 It is true that the statutes involved in Mills and Hall, the Securities Act of 1934 $14(a), 15 U.S.C. § 78n (a) (1970) and the LMRDA, 29 U.S.C. §§ 401-12 (1970), respectively, were silent regarding fee-shifting. Yet because the statutes were passed specifically to protect the institutions involved, and the individuals in those institutions, from future abuses of individual rights, it can be argued that Congressional intent to encourage private enforcement was implicit. By fee-shifting, the Court acted pursuant to this intent by encouraging other possible private plaintiffs to sue. 157 See text accompanying note 148 supra. 159 See Nussbaum; Equal Access; After Mills; and Judicial Green Light, Supra note 2. 161 388 U.S. 714 (1967). 104 165 162 1453 167 refused to apply the bad faith exception as a rationale to award the plaintiff his attorneys' fees where the defendant had caused the suit by deliberately infringing plaintiff's patent in violation of the Lanham Act." The Court held that federal courts lacked power to award attorneys' fees even in cases of bad faith on the part of the defendant when the statute creating the cause of action expressly provided remedies for its vindication without including fee-shifting provisions." Implicit in the Court's approach is the notion that the bad faith or any other recognized exception to the American Rule is inadequate to accomplish fee-shifting if juxtaposed against a statute creating the cause of action which specified the relief available without mentioning attorneys' fees. Mills, decided after Fleischmann, seemed to contradict directly the Fleischmann position by holding that attorneys' fees could be awarded to the prevailing plaintiff suing under the Securities Exchange Act of 1934, even though the section sued under was silent regarding plaintiff's attorneys' fees. But the Court returned to its Fleischmann approach in F. D. Rich Co. v. United States ex rel. Industrial Lumber Co.160 In Rich, the plaintiff, a supplier of building materials, sued to collect against a payment bond posted in favor of a government contractor under the Miller Act.16 The plaintiff had not been paid by a company alleged by plaintiff to be a subcontractor of the defendant government contractor. The suit established that the debtor was in fact a subcontractor, thus giving the plaintiff access to the bond under the Act. The Supreme Court reversed the court of appeals decision allowing plaintiff to recover attorneys' fees because, as in Fleischmann, the statute creating the cause of action, although allowing the plaintiff to recover "sums justly due," contained no provision for fee-shifting.' 168 The Court noted the existing policy arguments for fee-shifting and the judicial remedies for affecting it, but foreshadowed Alyeska by nevertheless refusing to depart from the American Rule without congressional sanction.170 At the time of the Rich and the Fleischmann decisions, these cases could have been viewed simply as an unwillingness of the Court to award attorneys fees by applying the bad faith exception to situations involving improper private conduct among competitors within a commercial context. But if Rich and Fleischmann are viewed as part of the approach that developed more fully in Alyeska, continued use of the bad faith as well as the common benefit exception may be doubtful absent statutory guidance. While these cases can be viewed narrowly, the more natural interpretation for the Fleischmann-Rich-Alyeska chain is that the Court has made judicial restraint on awards of attorneys' fees the general rule again and it is the exceptions which will be viewed narrowly in the future. 172 And yet the Court could have used its equity powers to fashion a private attorneys general exception to the American Rule. These were the same equitable powers exercised by the Court when it acted to avert injustice by fashioning a remedy to allow the plaintiff to recover his attorneys' fees from a common fund and then expanded the remedy to award a plaintiff his attorneys' fees because his suit had vindicated the constitutional rights of others.173 The Court's history of broadening the common benefit exception and its increased use of the improper conduct exception could have been stepping stones to the adoption of the private attorneys general concept. What is missing in the Court's analysis in Alyeska is a sensitivity to the practical results of the suit" accompanied by a 162 15 U.S.C. §§ 1051-1127 (Supp. IV, 1974). 174 163 386 U.S. at 720. The Court returned to the traditional position on the American Rule, asserting that it protects a losing litigant and encourages the poor to sue. 164 Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), was decided three years after Fleischmann. 165 When Fleischmann was restricted to its facts in Mills, 396 U.S. at 391, the reasonable inference was that Fleischmann would be of dubious precedential value in the future. See After Mills, supra note 2, at 328, and Nussbaum, supra note 2, at 321, 335. 160 417 U.S. 116 (1974). 167 40 U.S.C. § 270a (1970) (requiring contractors' bonds on government contracts). 165 417 U.S. at 128, construing 40 U.S.C. § 270b(a) (1970). 100 Id. at 128-31. 170 Id. at 130-31. 171 See 421 U.S. at 274, 282 (Marshall, J., dissenting); notes 110-16 and accompanying text supra. 172 Trustees v. Greenough, 105 U.S. 527 (1882), discussed at text accompanying notes 61-62 supra. 175 Hall v. Cole, 412 U.S. 1 (1973), discussed at text accompanying notes 75-77 supra. 174 For a discussion of the benefits conferred by the suit, see text accompanying notes 96-98 supra; for a discussion of the difficulties involved in the suit and the implications from them, see text accompanying notes 140-42 supra. perspective broader than the narrow focus on the individual plaintiff's relationship to the subject matter of the suit. The rather curt dismissal of the substantial benefit accruing to the public as a result of the suit and of the benefits inherent in encouraging private citizens to sue in the public interest through the promise of attorneys' fees 17 led to the Court's refusal to take another step to avoid injustice in public interest litigation. Although such a step would have led to the shifting of attorneys' fees to the losing defendant in public interest suits for the first time, the Court had clearly done this type of shifting before in the improper conduct exceptions.1 Similarly, since the Court had allowed shifting of attorneys' fees in suits brought under statutes silent regarding attorneys' fees,178 and even had created a presumption in favor of fee-shifting when a statute had prescribed it as discretionary, it was only a small step to allowing attorneys' fees in cases in which there was no statutory authorization. But the Court refused to take that forward step, retreating instead to a reliance on Congress to make a decision "on a policy matter that [it] has reserved for itself." 180 177 170 PUBLIC INTEREST LITIGATION AFTER "ALYESKA” 181 182 In the aftermath of Alyeska, we are left with a sadly limping, slightly stunned. public interest litigation movement even though the damage may be mainly to the movement's morale and not necessarily to its corpus.' In fact, Alyeska is actually the second case in a one-two punch thrown by the Supreme Court, seemingly aimed at knocking out public interest litigation, especially in the form of class action suits. The first blow was dealt in Zahn v. International Paper Co., where the Supreme Court held in a public interest lawsuit that a class action 189 can be maintained only when each member of the class, whether participating in the suit or not, satifies the ten thousand dollar jurisdiction amount requirement for suits brought in the federal courts.184 While the Alyeska plaintiffs were not affected by this monetary interest requirement, Zahn created a rigid rule the persuasive effect of which must be to inhibit the bringing of public interest class-action suits." Taken together, Zahn and Alyeska have dealt a powerful blow to the environmental protection movement, and to public interest litigation generally, by substantially reducing the opportunity to bring class action suits 185 175 The Court implicitly agreed that the litigation produced a substantial benefit, as evidenced by its acceptance of the lower court's finding, 421 U.S. at 259, and its ignoring the dissent in the lower court, which vigorously objected to finding any benefit in the plaintiffs' suit. 176 "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." 421 U.S. at 271. 177 See text accompanying notes 80-88 supra. 178 See, e.g., Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), and Hall v. Cole, 412 U.S. 1 (1973), discussed in text accompanying notes 70-74 and 75-77 supra. 179 See Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400 (1968), discussed at text accompanying notes 146-49 supra. 180 421 U.S. at 269. The Court did not specify how Congress has made this reservation, however. 181 Although Ralph Nader predicted that Alyeska "is going to have a very depressive impact on the ability of public interest lawyers to litigate" unless Congress responds with a statutory authorization for fee-shifting in public interest cases, public interest law firms had only begun to expect fees to be paid by the defendants under a private attorneys general theory. Time, May 26, 1975, at 42. In fact, the fees that had been awarded under this theory generally were insufficient to adequately cimpensate the attorneys. See Witt, After Alyeska: Can the Contender Survive?, 5 Juris Doctor 34, 35, 39 (October, 1975) [hereinafter cited as Witt]. The impact of Alyeska can be minimized if the attorneys take care to bring suit under those statutes that specifically provide for awards of attorney's fees. Certainly environmental litigation seem most clearly injured by Alyeska because the National Environmental Policy Act, 42 U.S.C. §§ 4321-47 (1970), has no fee award provision. 182 414 U.S. 291 (1973). 183 Suit was commenced under Fed. R. Civ. P. 23 (b) (3). 184 The suit was brought under diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) (1970). The Court, interpreting this statute, construed legislative silence regarding aggregation of claims as a prohibition against it, 414 U.S. at 302, and noted that its result would be the same under the general federal question jurisdiction statute, 28 U.S.C. § 1331 (1970). 414 U.S. at 302 n. 11. 185 Eisen v. Carlisle & Jacquelin, 417 U.S. 156 (1974), imposed a further restraint on commencing class actions by holding that plaintiffs in class action suits are required to bear the cost of notice to members of the class, regardless of the size of the class or the expense of the notice, and that such cost could not be imposed on the defendant, regardless of the likelihood that the plaintiff class would ultimately prevail on the merits. in the federal courts and by severely eroding the economic ability to assert environmental rights." 186 188 Edelman v. Jordan, 17 which preceded Alyeska by a few months, may soon be felt as another blow to public interest litigation. In Edelman, the plaintiff brought a class action suit for injunctive and declaratory relief against the Illinois officials administering the federal-state programs of Aid to the Aged, Blind, and Disabled (AARD). Edelman claimed that the Illinois Department of Public Aid, in not processing his claim to disability benefits for almost four months, violated federal law requiring eligibility determinations within thirty or forty-five days of application and the receipt of the assistance check within those periods for eligible applicants.' 180 His suit was successful, and the district court issued an injunction to require compliance with the federal regulations and ordered all retroactive benefits be paid to eligible persons who had applied for them.100 In reversing the court of appeals as to retroactive payments, the Supreme Court held that the eleventh immunity of states from suits in the federal courts precluded, absent state consent to the suit, the entry of an award of retroactive statutory benefits against state officials where the state, and not the individuals, would pay the benefits.191 Even though the Court in Alyeska expressly did not extend the eleventh amendment interpretation espoused in Edelman to preclude the award of counsel fees against state defendants," lower courts are currently divided on this question.183 The conservative tendencies of this Court 194 suggest that such an extension is likely to come.1 The result may be that even where an award of attorneys' fees is permissible under an exception to the American Rule, it would remain an inefficacious remedy if the defendants to the suit were immune from an award of fees.19 192 158 In the future, the private plaintiff will have no opportunity to recover his attorneys fees unless the litigation is brought under a statute providing for fee-shifting, as in note 4 supra, or unless he can persuade the courts that his suit clearly fits into the common benefit exception. The vitality of the common benefit exception is diminished, however, and that of the improper conduct exceptions, discussed at notes 80-88 and accompanying text supra, is dubious at best after Fleischmann and Rich. See text following note 170 supra. But see cases cited note 200 infra. Certainly Alyeska will influence lower courts to restrict, not enlarge, these exceptions and thus in large measure will foreclose fee-shifting. Until, und unless. Congress acts to authorize wider fee-shifting, the Court has sacrificed these public interest lawsuits and the plaintiffs who bring them, in spite of its recognition that "the encouragement of private action to implement public policy has been viewed as desirable in a variety of circumstances." 421 U.S. at 271. 157 415 U.S. 651 (1974), rev'g sub nom., Jordan v. Weaver, 472 F. 2d 985 (7th Cir. 1973). 186 This program was funded by federal and state governments. 42 U.S.C. §§ 1381-85 (Supp. IV, 1970). 10 Title 45 C.F.R. § 206.10 (a) (3) (1968) required, at the time the suit was instituted, that applications for Aid to the Aged or Blind be processed within thirty days of receipt and that applications for aid to the disabled be processed within forty-five days. 199 See Jordan v. Weaver, 472 F. 2d 985, 988 (7th Cir. 1973), affirming the judgment of the lower court. 191 415 U.S. at 678. 192 421 U.S. at 269-70 n. 44. Some lower federal courts, however, have already extended Edelman to immunize states and state officials. Skehan v. Trustees, 501 F. 2d 31 (3d Cir. 1974). 193 Compare Souza v. Travisono. 512 F. 2d 1137 (1st Cir. 1975); Class v. Norton, 505 v. Thompson, 494 F. 2d 885 (9th Cir. 1974); Gates v. Collier, 489 F. 2d 298 (5th Cir. 1973); F. 2d 123 (2d Cir. 1974): Jordon v. Fusari, 496 F. 2d 646 (2d Cir. 1974); Brandenburger Sims v. Amos, 340 F. Supp. 691 (M.D. Ala.), aff'd mem., 409 U.S. 942 (1972), with Taylor v. Perini, 503 F. 2d 899 (6th Cir. 1974): Skehan v. Trustees, 501 F. 2d 31 (3d Cir. 1974); Jordon v. Gilligan. 500 F. 2d 701 (6th Cir. 1974); Named Indiv. Members v. Texas Highway Dep't, 496 F. 2d 1017 (5th Cir. 1974). 194 See Green. A Pro-Business Tilt in the Courts, The Wall Street Journal, June 10, 1975, at 20, col. 3, which noted the current Supreme Court's "judicial conservatism": "It's not willing to go one step further than it has to." The ruling in Alyeska, the author concluded, developed logically from this conservatism. But cf. an editorial on the same page, A Case for Restraint, The Wall Street Journal, June 10, 1975, at 20, col. 1, which applauded the holding in Alyeska and, by implication, the conservative Court. 195 Wood v. Strickland. 420 U.S. 308 (1975), although noting that school officials have merely a qualified good-faith immunity. suggests that intentional misconduct, not mere harmful action, may be required in the future to justify damages awarded directly against .school, and by extension governmental, officials. 138 This immunity comes from either the eleventh amendment, see notes 192-93 and text accompanying note 194 supra or from 28 U.S.C. $2412 (1970). see note 33 and accompanying text supra. The results could be similar to that if Harrisburg Coalition v. Volpe, 381 F. Supp. 898 (M.D. Pa. 1974), where a citizen's group successfully sued under the Department of Transportation Act to enjoin highway construction through a city park. The court refused to award the plaintiffs their attorneys' fees because only the city officials of Harrisburg, the least culpable of all the defendants, were not statutorially immune from paying them. CONCLUSION 197 a more réal sense, it is too early to measure Alyeska's impact on public on. Although the initial reaction to Alyeska was dismay,' ration must note that in general only expectations were disapupreme Court, not funds interrupted.188 By deferring to a Congress ested an awareness of the problems presented by the American re Alyseka was decided.1 the Court could actually have helped litigants. If Congress acts to authorize fees taxed to losing degainst the government, ultimately,200 significant merely as the imyeska will be hardly remembered, 200 significant merely as the imaformed congressional actively. But if Congress chooses not to act will stand as a reaffirmation of the "traditional American way of qual access to the courts... [while] in fact, because of economics, at, large corporations and the wealthy will normally have [From Environmental Affairs, Spring 1976] HE ALYESKA CHILL: THE FUTURE OF ATTORNEYS' FEES AWARDS IN ENVIRONMENTAL LITIGATION By Philip M. Cedar * rs the American public has become a significant force in pressing tal protection. Because access to Congressional and administrative Environmental Affairs t just rule against us. They threw out the whole development in that was moving in the direction of more and larger fees on this basis," ern of the Council for Public Interest Law, quoted in Witt, supra note 181, lph Nader's reaction at note 181 supra. Supra. the results of Alyeska were announced, some members of Congress had proval for fee-shifting and there has been some preliminary Congressional ter. For example, regarding the Legal Services Corporation Act of 1974, 42 74), "we expect that the courts will award fees to legal service programs 1 award would be made to a private attorney or where such officers are private attorneys general.'" 120 CONG. REC. 12953 (1974) (remarks of 1. See also id. at 12934-35 (remarks of Senator Abourezk). Senator Tunney icted hearings on attorneys' fees and fee-shifting. Hearings on Legal Fees mm. on Representation of Citizen Interests of the Senate Comm. on the ng., 1st Sess., pt. 3 (1973). It is reported that Senator Tunney is considending existing statutes to authorize fee-shifting or a broad fee-shifting the more effective. On Aug. 1, 1975, Senator Tunney introduced a bill and environmental areas. Seiberling has introduced H.R. 7825 and H.R. 8218 to amend the Mineral 30 U.S.C. § 185 (1970); H.R. 7829 and H.R. 8222 to amend the National olicy Act, 42 U.S.C. §§ 4321-47 (1970); H.R. 7828 and H.R. 8220 to civil rights statutes, and a bill to amend the injunction section of the J.S.C. & 15 (1970), to allow awards of attorneys' fees. He has introduced R. 8221, which would add a new section to Title 28 of the United States torneys fees in civil cases in federal courts at the judge's discretion, even d States as a defendant. This would effectively reverse Alyeska without lance the Supreme Court deemed indispensible. See text preceding note 91. Drinan has introduced H.R. 7968 which would assess attorneys' fees ed States when a suit successfully challenges an agency decision in civil and environmental areas. ediate present, however, Alyeska has made itself felt as the authority by denied to successful plaintiffs. See, e.g., Ripon Soc'y v. National RepubF. 2d 548 (D.C. Cir. 1975) (remanding for a decision consistent with iv. City of Omaha, 524 F. 2d 1013 (8th Cir. 1975); Burbank v. Twomey, 7th Cir. 1975); Kirkland v. Department of Correctional Services, 520 1975); Named Indiv. Members v. Texas Highway Dep't, 519 F. 2d 1372 Hallmark Clinic v. North Carolina Dep't of Human Res., 519 F. 2d 1315 O'Neal v. Gresham, 519 F. 2d 803 (4th Cir. 1975); Handler v. San Jacinto F.2d 273 (5th Cir. 1975); Tryforos v. Icarian Dev. Corp., 518 F. 2d 975); Turner v. FCC, 514 F. 2d 1354 (D.C. Cir. 1975); Natural Res. 7. EPA, 512 F. 2d 1351 (D.C. Cir. 1975); Rasmussen v. City of Lake ipp. 148 (N.D. Ill. 1975); Phillips v. Puryear, 403 F. Supp. 80 (W.D. have been awarded by the courts, in spite of Alyeska, in some recent oe v. Poelker, 527 F. 2d 605 (8th Cir. 1976) (reaffirming a position in Is because of improper conduct in "abortion litigation involving the State nclated by the same court in Doe v. Poelker, 515 F. 2d 541, 547 (8th er v. Noble, 526 F. 2d 677 (5th Cir. 1976) (for bad faith in cutting a McDonald v. Oliver, 525 F. 2d 1217 (5th Cir. 1976) (for bad faith and t by union officials); Clemons v. Runck, 402 F. Supp. 863 (S.D. Ohio ith in racial discrimination in sale of property); Morris v. Board of ). 188 (D. Del. 1975) (for bad faith in firing teacher). Cf. SEC v. Aberdeen 3 F. 2d 603 (3d Cir. 1975) (remanded to determine if the common benefit applied to the facts of the case). ote 181, at 41 (emphasis original). |