Opinion
CIVIL ACTION NO. 93-10799-MA.
October 23, 2001
MEMORANDUM OF DECISION AND ORDER ON PLAINTIFFS' MOTION FOR ATTORNEYS' FEES AND EXPENSES
This matter is before the court on the Plaintiff Manufacturers' Motion for Attorneys' Fees and Expenses (Docket #144) pursuant to 42 U.S.C. § 1988. The defendant Commissioner of Massachusetts Department of Environmental Protection (the "Commonwealth" or "DEP") opposes the award of fees in its entirety, and, in the alternative, requests the opportunity to challenge the reasonableness of the specific fees requested if fees are allowed. For the reasons detailed herein, the court finds that the plaintiffs are entitled to recover fees and expenses in this matter. The defendant shall file any objections to specific fee requests within thirty (30) days of the date of this order, and the plaintiffs shall file any response within fourteen (14) days thereafter.
BACKGROUND
The plaintiffs are automobile manufacturers or their representatives (collectively the "Manufacturers"). In 1993, the Manufacturers commenced suit seeking injunctive relief "to stall the implementation of motor vehicle tailpipe emissions regulations" adopted by the Massachusetts DEP. American Automobile Manufacturers Association ("AAMA") v. Commissioner, Massachusetts Department of Environmental Protection ("DEP"), 31 F.3d 18, 20 (1st Cir. 1994) ("AAMA I"). Since this dispute has already resulted in a large number of published decisions which explain the legal issues at length, only a brief summary is necessary here in order to put the present fee dispute in context. As the Court in AAMA I explained:
A major issue raised by the motion for fees was whether DaimlerChrysler and General Motors are entitled to assert claims for fees that were paid by the American Automobile Manufacturers Association, a now-defunct trade group. At the May 8, 2001 oral argument on the motion for fees, the parties asked the court to defer ruling on the motion to see if this major issue could be resolved between themselves. After several requests for continuances, by a Joint Status Report dated July 27, 2001, the court was informed that the Commonwealth was withdrawing its objection to DaimlerChrysler and General Motors' right to seek these fees and that the case was now ripe for a ruling "upon the Commonwealth's remaining liability defenses, followed, if deemed necessary, by additional briefing and decision as to the reasonableness of the fees requested." (Docket #158). Unfortunately, the new schedule coincided with a particularly busy time for this court and hence the delay in issuing this decision. In any event, since it is no longer relevant, no distinction will be made as to the different plaintiffs at differing times throughout this litigation.
State regulation of motor vehicle emissions is generally preempted by the Clean Air Act, 42 U.S.C. § 7543(a), with one exception: California can enforce its own standards, subject to EPA approval by way of a waiver under § 209(b) of the Act, id. § 7543(b) (the waiver requirement). Consequently, there can be only two types of cars "created" under emissions regulations in this country: "California" cars and "federal" (that is, EPA-regulated) cars. See id. § 7507. Other states cannot take any action that would force manufacturers to create a "third vehicle." Id. (the third vehicle requirement).
Section 177 of the Act allows other states to adopt standards "identical" to California's (the identicality requirement), but only if there is a two-year time lapse between the time the standards are adopted and the first model year affected by those standards (the leadtime requirement). Id. Similarly, § 211 of the Act authorizes EPA to regulate motor fuels and preempts any unapproved state regulations, except for California, which may enact fuel standards without EPA approval. Id. § 7545(c)(4)(B).Id. at 21 (footnotes omitted). In 1991, California enacted vehicle emissions and clean fuel requirements which required the creation of four categories of cars to meet increasingly stringent emissions standards. In 1992, the Commonwealth adopted portions of the California standards intending to apply them beginning with 1995 models. This suit followed.
The Manufacturers' initial attempts to obtain injunctive relief were unsuccessful. The District Court ruled that the Manufacturers had failed to establish a likelihood of success on the merits, and the 1995 standards were not enjoined. This decision was affirmed by the First Circuit. Id. at 28. The Commonwealth was awarded costs, but not attorneys' fees, as the appeal was found not to be frivolous or filed in bad faith.
On November 26, 1996, DEP adopted new Zero-Emission Vehicle ("ZEV") standards, which the Manufacturers challenged in their Third Amended Complaint filed on December 6, 1996. This Third Amended Complaint and the prosecution therewith forms the basis of the motion for fees and costs. The ZEV standards which Massachusetts had adopted were originally included in California's EPA-approved program, but had been shifted to Memoranda of Agreements between California and the Manufacturers. As a result, the Manufacturers argued, the ZEV regulations adopted by the Commonwealth were preempted by the Clean Air Act. Thus, the Third Amended Complaint presented:
issues very different from those in the complaint they filed against DEP in 1993. The basic question in 1993 was whether DEP's original adoption of the California regulations violated the identicality requirement of § 177 of the CAA. In the present complaint, the automakers seek to enjoin the enforcement of those regulations that require the production of ZEVs in the model years 1998 through 2002, asserting principally that the Massachusetts ZEV regulations are preempted by § 209(a) and that they are not identical to the California standards.AAMA v. DEP, 998 F. Supp. 10, 15 (D.Mass. 1997). While this Massachusetts suit was pending, a substantially identical suit was brought in New York challenging that State's identical regulations. See id.; AAMA v. Cahill, 973 F. Supp. 288 (N.D.N.Y. 1997).
The Massachusetts District Court, by Mazzone, J., ruled that the Massachusetts ZEV regulations were preempted by the Clean Air Act, and partial summary judgment was entered in favor of the Manufacturers on the three counts of the complaint which dealt with preemption, leaving one count which was based on different statutory provisions unresolved. AAMA v. DEP, 998 F. Supp. 10, 26 (D.Mass. 1997). Judge Mazzone's decision made no reference to attorneys' fees. The convoluted appellate history which followed is detailed more fully in Association of International Automobile Manufacturers, Inc. ("AIAM") v. DEP, 208 F.3d 1 (1st Cir. 2000). Briefly, on appeal the First Circuit remanded the matter for specific findings under Fed.R.Civ.P. 54(b) as to why judgment had entered on less than all the counts of the complaint. An explanatory decision was issued by Judge Mazzone on January 22, 1998. AAMA v. DEP, 998 F. Supp. 26 (D.Mass. 1998). Again, that decision made no reference to attorneys' fees.
The First Circuit then stayed the appeal, referring issues for decision to the EPA. AAMA v. DEP, 163 F.3d 74 (1st Cir. 1998). After the EPA issued an opinion, the Manufacturers brought suit in the District of Columbia Circuit and successfully sought to stay the Massachusetts action. See AIAM v. DEP, 196 F.3d 302 (1st Cir. 1999). The District of Columbia case was eventually transferred back to the First Circuit where it was consolidated with the Massachusetts action. The grant of summary judgment in favor of the Manufacturers by Judge Mazzone was eventually affirmed on March 27, 2001 after, as the First Circuit explained, "some delay and procedural confusion (for which we accept some, perhaps most, of the responsibility)." AIAM v. DEP, 208 F.3d 1, 2 (1st Cir. 2000).
On April 10, 2000, the Manufacturers filed a "Notice of Appellate Decision and Possible Filing of Attorney Fee Applications" with the District Court. (Docket #131). Therein, the Manufacturers indicated that they might be seeking attorneys' fees for the litigation under 42 U.S.C. § 1988 in the future, although no final decision had been made. The Manufacturers relied on First Circuit Local Rule 39.2 in support of their request. On May 3, 2000, the Manufacturers filed an "Unopposed Motion to Stay Proceedings" seeking a stay of the case until July 26, 2000, when a petition for certiorari to the U.S. Supreme Court from the First Circuit's decision would be due. (Docket #133). As the Manufacturers explained the status of their request for fees: "while no final decision has been made on the issue, AIAM and the Dealers may or may not file applications as prevailing parties for reimbursement of attorney fees, expenses and costs incurred with this litigation. The time for filing such fee application is governed in whole or in part by First Circuit Local Rule 39.2. That rule establishes the applicable deadline for such `fee applications' as 30 days after the `time for filing . . . a petition for certiorari has expired,' or, in this case, July 26, 2000." (Docket #133 at 2). Subsequently, several additional stays were requested and granted.
No petition for certiorari was filed. On July 26, 2000, the Manufacturers filed a petition for fees with the First Circuit pursuant to First Circuit Local Rule 39.2. By this motion, the Manufacturers asked the First Circuit "first to establish their right to recover attorney's fees pursuant to 42 U.S.C. § 1988 and First Circuit Local Rule 39.2 and then to remand for the District Court to determine a specific award." Plaintiffs' Motion to Establish Entitlement to Attorney's Fees and to Remand for Further Proceedings (attached to Docket #135 as Ex. A). On August 30, 2000, the First Circuit denied the motion "without prejudice to the filing of a motion for attorneys' fees with the District Court." (Docket #138 at ¶¶ 5-6). On October 24, 2000, the parties filed a Stipulation of Dismissal as to the remaining count of the complaint. In addition, the plaintiffs filed a Motion (1) to Lift Stay of Proceedings, (2) to Recognize Effect of Substituted Parties Plaintiff, and (3) for Entry of Final Judgment (Docket #138) ("Motion for Final Judgment").
The Commonwealth opposed the Motion for Final Judgment on the grounds that final judgment already had been entered. (Docket #139). In its opposition, the Commonwealth argued that the "Motion is evidently motivated by the fact that a request for attorney's fees `must be filed and served no later than 14 days after the entry of judgment.' Rule 54(d)(2). The Plaintiffs did not timely file or serve such a request, and so they evidently hope to restart the time by requesting that judgment be entered." (Docket #139 at 2).
On January 24, 2001, Judge Mazzone entered a Memorandum and Order. (Docket #141). Therein, he allowed the unopposed motion to lift the stay, and allowed the substitution of plaintiffs. The court denied that portion of the motion seeking the entry of final judgment "on the grounds that it would be repetitive and unnecessary." As the court ruled, the judgment which had been entered on three counts on January 22, 1998 "was not an `interlocutory judgment,' as the plaintiffs suggest, but rather a final judgment entered in accordance with Rule 54(b) of the Federal Rules of Civil Procedure." Since the only remaining count had been dismissed by agreement, all counts of the complaint had been resolved, either by judgment or stipulation. Finally, after concluding that the January 22, 1998 judgment was a final judgment, Judge Mazzone ruled:
Rule 54(d)(2)(B) requires that a motion for attorneys' fees be filed no later than 14 days after entry of judgment unless otherwise provided by statute or order of the court. I hereby order that the plaintiffs file any motion for attorneys' fees no later than 14 days from the date of the issuance of this Memorandum and Order.
The presently pending motion was timely filed in response to this order. The Manufacturers have requested $233,574.84 for fees, expenses, and interest (referred to as a "delay-in-payment enhancement"), plus an additional $19,306.25 in connection with preparation of its fee requests.
ANALYSIS Timeliness of Request for Fees
The Commonwealth's first objection to any award of fees to the Manufacturers is that the motion for fees was not timely under Fed.R.Civ.P. 54(d)(2) because it was not filed and served within 14 days after the entry of judgment. This court agrees that the motion for fees could have been rejected by the District Court judge as untimely since it was not filed within 14 days after the entry of final judgment, which occurred on January 22, 1998 at the latest. The Manufacturers' reliance on Fed.R.App.P. 39 was clearly misplaced, since that Rule applies by its terms to "an award of fees and expenses pursuant to 28 U.S. § 2412,in connection with an appeal . . . ." (Emphasis added). "In general, rules limiting the time within which fee claims may be filed are enforceable according to their tenor." Witty v. Dukakis, 3 F.3d 517, 519 (1st Cir. 1993) (decided under now deleted Local Rule 54.3). It would have been within Judge Mazzone's discretion not "to extradite [plaintiffs] from a self-dug hole." Id. at 521 and cases cited.
Nevertheless, it also was clearly within the court's discretion to extend the time for filing the request for fees, and that is what happened here. In response to DEP's argument that plaintiffs were seeking to extend the time for requesting fees by filing their Motion for Final Judgment, Judge Mazzone denied the motion insofar as it sought the entry of judgment but set up a schedule for requesting fees. Fed.R.Civ.P. 54(d) grants the court discretion in setting such a schedule, including the ability to permit claims for fees "to be filed after resolution of the appeal." See Comments on 1993 Amendments to Rule 54(d)(2). The remaining claim in the instant action may have supported a request for fees if it had been pursued instead of dismissed, at which point one overall fee petition could have been the most efficient way to proceed. In sum, the record indicates that Judge Mazzone has already exercised his discretion and issued an order of the court altering the time by which the Manufacturers had to request fees. I see no basis for modifying that decision.
Propriety of Fee Award
DEP does not challenge the fact that the claims raised in the instant litigation are of the type which may support an award of attorneys' fees and expenses under 42 U.S.C. § 1983 and 1988. Thus, as the United States Supreme Court held in Blessing v. Freestone, 520 U.S. 329, 117 S.Ct. 1353 (1997), 42 U.S.C. § 1983 may provide redress for the violation of a federal right, and courts traditionally look at three factors in order to determine whether a statute gives rise to a federal right. Id. at 340, 117 S.Ct. at 1359. "First, Congress must have intended that the provision in question benefit the plaintiff. Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so `vague and amorphous' that its enforcement would strain judicial competence. Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory, rather than precatory, terms." Id. at 340-41, 117 S.Ct. at 1359 (internal citations omitted). Assuming these criteria are met, a rebuttable presumption arises that the right is enforceable under § 1983. The presumption may be rebutted upon a showing that "Congress specifically foreclosed a remedy under § 1983." Id. at 341, 117 S.Ct. at 1360 (citation omitted).
In the New York litigation brought by the Manufacturers raising the same issues as in the present case, the court ruled that the preemption claims satisfy the Blessing criteria and may be brought pursuant to 42 U.S.C. § 1983. AAMA v. Cahill, 53 F. Supp.2d 174, 182, 185 (N.D.N.Y. 1999). DEP does not challenge that ruling, which I adopt in the instant case. Thus, the Manufacturers may proceed under §§ 1983 and 1988.
"Special Circumstances"
DEP argues that the "special circumstances" of this case make it unjust to award the Manufacturers their fees. Specifically, DEP argues that "the rule challenged in this phase of the litigation was a small but integral part of the Commonwealth's Low Emission Vehicle program" and that since ZEVs will have to be delivered in the year 2003, by defeating the requirement that ZEV delivery begin in 1998 and 1999, "this litigation can only be seen as a delaying action." DEP's "Preliminary Opposition to Motion for Attorneys' Fees and Expenses" (Docket #148) ("Opp.") at 7. DEP further argues that the Manufacturers' allegedly unsavory lobbying efforts in California resulted in the regulations being moved to the memoranda of understanding for the express purpose of defeating other states' regulations. As DEP puts it, "[I]n view of the automakers' conduct in taking affirmative steps to subvert Massachusetts' legitimate program in pursuance of the Clean Air Act's purpose to protect the public health and environment, the Court should exercise its discretion to deny the application for fees as unjust." Opp. at 10.
DEP's passion is clear. However, a fee petition is not the appropriate forum to argue the "public good" — those issues are best debated in the legislature. Case law mandates that the Manufacturers recover fees and expenses in the instant case.
The court recognizes that the Manufacturers argue equally passionately that they acted in the public good in bringing this litigation.
As the First Circuit recently held in Gay Officers Action League v. Puerto Rico, 247 F.3d 288 (1st Cir. 2001):
In regard to cases brought under the Civil Rights Act of 1871, 42 U.S.C. § 1983, the Fees Act states in pertinent part that `the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs.' 42 U.S.C. § 1988(b). Although this fee-shifting provision is couched in permissive terminology, awards in favor of prevailing civil rights plaintiffs are virtually obligatory.Id. at 293 and cases cited. Admittedly, there may be "rare cases in which `special circumstances' would render an award unjust." Stanton v. S. Berkshire Reg'l Sch. Dist., 197 F.3d 574, 576 (1st Cir. 1999) (plaintiff was not prevailing party where relief obtained was not what it had sought). DEP has cited to no cases where such circumstances have been found and, as evidenced by the cases on which both parties rely, the present situation does not qualify. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 89 n. 1, 109 S.Ct. 939, 942 n. 1, 103 L.Ed.2d 67 (1989) (citing cases which recognize that under § 1988 the prevailing party should ordinarily recover fees unless "special circumstances would render such an award unjust") (citations omitted); Hensley v. Eckerhart, 461 U.S. 424, 429-30, 103 S.Ct. 1933, 1937-38, 76 L.Ed.2d 40 (1983) (same, and ruling that the level of success is relevant to the amount of fees awarded); Newman v. Piggie Park Enters., Inc., 390 U.S. 400, 402 n. 5, 88 S.Ct. 964, 966 n. 5 (1968) (no special circumstances even though respondents interposed patently frivolous defenses); United States v. Cofield, 215 F.3d 164, 171 (1st Cir. 2000) (government's refusal to accept settlement offer made on eve of trial does not constitute special circumstances warranting denial of legal fees, even though offer was for full amount sought in complaint, albeit without interest or multiple damages); Stefan v. Laurenitis, 889 F.2d 363, 371 (1st Cir. 1989) ($16,000 recovery in harassment suit seeking $1 million not special circumstances warranting denial of fees; court confirms that "[A]mong the special circumstances that may be considered are `the presence or absence of any bad faith or obdurate conduct on the part of either party, and any unjust hardship that a grant or denial of fee-shifting might impose.'") (citing Burke v. Guiney, 700 F.2d 767, 773 (1st Cir. 1983) (additional citations omitted)). The present case simply presents hotly contested litigation concerning the enforceability of Clean Air regulations and involving serious issues of statutory interpretation. One side had to win and one side had to lose. Unfortunately for DEP, it lost in a setting where the prevailing party is entitled to legal fees.
Nor can there be any real question that the Manufacturers were the "prevailing party." A plaintiff "need only obtain `some relief on the merits' to prevail; nominal damages will suffice." System Mgmt., Inc. v. Loiselle, 154 F. Supp.2d 195, 200 (D.Mass. 2001) and cases cited. As the court explained in Gay Officers Action League v. Puerto Rico:
Typically, achieving prevailing party status requires a plaintiff to show that he succeeded on an important issue in the case, thereby gaining at least some of the benefit he sought in bringing suit. Put another way, "a plaintiff `prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff."247 F.3d at 293 (internal citations omitted).
Here, the plaintiffs prevailed in all the claims raised by the Third Amended Complaint. DEP's argument that the victory was a pyrrhic one of minimal value is defeated by the vigor with which the suit was defended.See id. at 294-95 (Commonwealth's vigorous defense of regulation found to be unconstitutional defeats its claim in attorneys' fees dispute that the regulation was an anachronism which it had long intended to rescind, so victory was de minimis). Clearly, the Commonwealth could have walked away from enforcing regulations for a few years knowing that they would become effective in the future if enforcement in the short-term was not that important. This is not the position it took.
Moreover, the litigation raised serious issues about how emissions regulations could be enacted and made applicable to states other than California. While DEP challenges the methods employed, the Manufacturers cite to various policy reasons which they believe validate the approach taken as it may lead to sharing of information and creative experimentation leading to new technologies. In any event, the issue was clearly one of importance to all parties.
CONCLUSION
For the reasons detailed herein, the plaintiffs are the prevailing parties within the meaning of § 1988, and this case does not raise "special circumstances" precluding the award of fees. In view of the detailed submission of the plaintiffs, it does not appear that additional discovery is necessary. Therefore, DEP shall have thirty (30) days from the date of this order to challenge the amounts of fees requested, and the plaintiff shall file any response within fourteen (14) days thereafter. The parties shall indicate whether they request oral argument.
DEP may file a motion for discovery if it believes it is necessary, but must base such motion on specific facts supporting the need for the information.
Judith Gail Dein United States Magistrate Judge