NATURAL RESOURCES DEFENSE COUNCIL v. U.S.E.P.A

GIBBONS, Circuit Judge.

In NRDC v. EPA, 683 F.2d 752 (3d Cir. 1982), the Natural Resources Defense Council (NRDC) filed a petition for review under section 509(b)(1) of the Clean Water Act, 33 U.S.C. § 1369(b)(1) (1976). NRDC sought review of the Environmental Protection Agency's (EPA's) indefinite postponement of the effective date of final amendments to certain EPA regulations. This court held that EPA's actions violated the notice and comment requirements for rulemaking under 5 U.S.C. § 553 (1976) of the Administrative Procedure Act (APA). We ordered EPA to reinstate all of the amendments effective March 30, 1981. NRDC v. EPA, 683 F.2d at 753.

NRDC now petitions the court for an award of counsel fees and other expenses in the amount of $34,375.85 pursuant to section 204(a) of the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (1976 Supp. V 1981). Because we find that the position of EPA was not substantially justified, we will grant NRDC's fee petition.

I. BACKGROUND

Section 307(b)(1) of the Clean Water Act mandates that EPA promulgate regulations requiring industries to meet pretreatment standards before discharging certain pollutants into publicly owned treatment works. 33 U.S.C. § 1317(b)(1) (1976 Supp. I 1977). Pursuant to that mandate and to a consent decree, see NRDC v. EPA, 683 F.2d at 754 n. 6, EPA promulgated General Pretreatment Regulations for Existing and New Sources, 40 C.F.R. § 403 (1978) (the 1978 regulations), and those regulations have been in effect since August 28, 1978. 43 Fed.Reg. 27,736 (1978).

On October 29, 1979, EPA proposed a set of amendments to the 1978 regulations. After the required period of public comment, EPA promulgated those amendments in final form on January 28, 1981, to become effective on March 13, 1981. 46 Fed.Reg. 9,404 (1981).

On January 29, 1981, the President of the United States issued a memorandum ordering the federal agencies to postpone for sixty days from the date of the memorandum the effective dates of all regulations that were final but not yet effective. 3 C.F.R. § 223 (1982). In response EPA postponed the effective date of the amendments to the 1978 regulations from March 13, 1981, to March 30, 1981. 46 Fed.Reg. 11,972 (1981). NRDC raised no challenge to that postponement.

On February 17, 1981, President Reagan issued Executive Order No. 12,291, 3 C.F.R. § 127 (1982), reprinted in 5 U.S.C. § 601 (Supp. V 1981) (E.O. 12,291). E.O. 12,291 called for a reassessment of federal agency action in order to insure concentration only on regulatory objectives that would maximize net benefits to society. E.O. 12,291 required the federal agency to prepare a Regulatory Impact Analysis for all its major rules for review by the Office of Management and Budget.

Section 7 of E.O. 12,291 specifically addressed agency regulations which were in final form but not yet effective. Subsections (a) and (d) provided in part:

(a) To the extent necessary to permit reconsideration in accordance with this Order, agencies shall, except as provided in Section 8 of this Order, suspend or postpone the effective dates of all major rules that they have promulgated in final form as of the date of this Order, but that have not yet become effective, excluding:

(1) Major rules that cannot legally be postponed or suspended;

(2) Major rules that, for good cause, ought to become effective as final rules without reconsideration.

. . . .

. . . .

(d) Agencies may, in accordance with the Administrative Procedure Act and other applicable statutes, permit major rules that they have issued in final form as of the date of this Order, and that have not yet become effective, to take effect as interim rules while they are being reconsidered in accordance with this Order, provided that, agencies shall report to the Director, no later than 15 days before any such rule is proposed to take effect as an interim rule, that the rule should appropriately take effect as an interim rule while the rule is under reconsideration.

Exec.Order No. 12,291, 3 C.F.R. §§ 127, 131-32 (1982), reprinted in 5 U.S.C. § 601 (Supp. V 1981). E.O. 12,291 section 3(b) gives each agency the power to decide which of its rules are "major rules" pursuant to the definition in E.O. 12,291 section 1(b). Initially EPA did not consider the amendments to be major rules, NRDC v. EPA, 683 F.2d at 756; however, on March 27, 1981, the Acting Administrator of EPA signed an order eliminating the March 30, 1981 effective date and instead indefinitely postponing the amendments. 46 Fed.Reg. 19,936 (1981). The Acting Administrator cited E.O. 12,291 as the sole reason for the indefinite postponement, indicating that EPA then considered the amendments to be major rules.

A "major rule" is defined in section 1(b) of E.O. 12,291 as a regulation likely to affect the economy by $100 million or more a year, cause a major increase in costs or prices, or have a significant adverse impact on competition, employment, investment, productivity, innovation, or on the capacity of United States industry to compete with foreign industry.

On June 24, 1981, NRDC filed a petition for review in the court of appeals pursuant to section 509(b)(1), 33 U.S.C. § 1369(b)(1) (1976). NRDC challenged EPA's indefinite postponement of the amendments without the notice and comment period required by the APA, 5 U.S.C. § 553 (1976).

We permitted the Chemical Manufacturers' Association, American Cyanamid Company, FMC Corporation, Union Carbide Corporation, American Paper Institute, National Forest Products Association, Ford Motor Company, the Chicago Association of Commerce and Industry, the Illinois Manufacturers' Association and the Mid-American Legal Foundation to intervene on the side of EPA.

On October 5, 1981, EPA decided to make the postponed amendments effective as of January 31, 1982. 46 Fed.Reg. 50,502 (1981). On October 13 EPA indicated that it would conduct a rulemaking proceeding on whether further to postpone the amendments beyond January 31. It gave notice and initiated a public comment period on the possibility of that postponement. 46 Fed.Reg. 50,503 (1981). EPA indicated that it had considered putting the amendments into effect immediately and then conducting the notice and comment period. It had rejected that course, however, to avoid the confusion that would result if EPA put the amendments into effect and then suspended them after notice and comment. 46 Fed.Reg. 50,502 (1981).

After EPA had reviewed the comments received, it published an order on February 1, 1982, which allowed a majority of the amendments to become effective as of January 31, 1982. 47 Fed.Reg. 4,518 (1982). It indicated, however, that four controversial amendments would be postponed until further notice pending continued analysis. 47 Fed.Reg. 4,518 (1982).

II. THIS COURT'S DECISION

In addressing NRDC's challenge to the March 27, 1981 decision to postpone the amendments, we first examined EPA's and intervenors' contentions that the case was moot because EPA had subsequently established an effective date for the amendments and had held a notice and comment period before considering any further postponement. We noted that the "case may well be moot as to all of the amendments except the four which were further postponed." NRDC v. EPA, 683 F.2d at 759 n. 15. We concluded, however, that because we could order relief which would alter the status quo — i.e., we could order reinstatement of all of the amendments as of March 30, 1981 — the case was not moot. Id. at 759.

Ford Motor Company as intervenor also raised a jurisdictional challenge. Relying on Consumer Energy Council of America v. Federal Energy Regulatory Comm'n., 673 F.2d 425 (D.C.Cir. 1982), we rejected Ford's argument and held that we had jurisdiction to hear the case. NRDC v. EPA, 683 F.2d at 759-60.

Turning to the merits we first addressed the contention raised by intervenors, but not by EPA, that the postponement was not a rulemaking subject to the APA's requirements. Id. at 761. Because the repeal of a rule clearly constitutes rulemaking under the APA, 5 U.S.C. § 551(5) (1976), we held that an indefinite postponement, operating effectively as a repeal, also constituted rule-making.

We next considered and rejected an argument raised by intervenors, but not by EPA, that the agency had "good cause" under 5 U.S.C. § 553(b)(B) (1976) for its failure to comply with the rulemaking requirements of the APA. Id. at 765-67. Although EPA stated that its March 27, 1981 postponement was pursuant to E.O. 12,291, we concluded that EPA could have complied with both the APA and E.O. 12,291. Id. at 765. We saw no reason why EPA could not have held a notice and comment period before its initial postponement instead of waiting until October of 1981 to do so. Id. at 766.

Having held that EPA's action violated the APA, we next addressed the question of a remedy. EPA contended that no remedy was required because it had cured any procedural defect in its initial postponement by establishing an effective date and then holding a notice and comment period before any further postponement. Id. at 767. We rejected EPA's contentions. We held that EPA's later notice and comment procedures did not cure its failure to provide them before the amendments were ever postponed. Accordingly, we remanded the case to EPA with instructions to reinstate all the amendments effective March 30, 1981. Id. at 769.

III. THE EQUAL ACCESS TO JUSTICE ACT

NRDC now petitions the court for counsel fees and expenses incurred in the litigation pursuant to section 2412(d)(1)(A) of the Equal Access to Justice Act (the EAJA or the Act). Section 2412(d)(1)(A) of the EAJA provides for a mandatory award of counsel fees to a qualified prevailing party in certain civil actions brought by or against the United States, unless the "position of the United States was substantially justified." That section is a specific statutory exception to the American rule which provides that each litigating party must assume its own counsel fees, absent a common-law exception or a contrary legislative provision. H.R.Rep. No. 1418, 96th Cong., 2nd Sess. 8-9, reprinted in 1980 U.S. Code Cong. Ad. News 4953, 4984, 4986-88 [hereinafter "House Report"].

There is no dispute that NRDC meets the financial qualifications specified in section 2412(d)(2)(B) for a fee award pursuant to section 2412(d)(1)(A).

NRDC is clearly a "prevailing party." The court awarded NRDC all the relief that it requested. NRDC v. EPA, 683 F.2d at 769.

28 U.S.C. § 2412 had previously provided only for an award of costs against the government and had specifically excluded an award of attorneys' fees. Section 2412(d)(1)(A) is intended as a "limited experiment" and contains a "sunset provision" repealing the section as of October 1, 1984. House Report, supra, at 8, 13.

Section 2412(d)(1)(A) reads as follows:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A) (Supp. V 1981) (emphasis added). Tracking the language of the statute, EPA raises two arguments against an award of fees in this case. Relying on the language "[e]xcept as otherwise specifically provided by statute," EPA argues that the EAJA is inapplicable here because the Clean Water Act contains its own fee-shifting provision which exclusively governs this action. In the alternative EPA argues that even if the EAJA applies, the court should not award fees because EPA's position was substantially justified.

A. The Applicability of the EAJA

EPA argues that the conditional language "[e]xcept as otherwise specifically provided by statute" in section 2412(d)(1)(A) renders the Equal Access to Justice Act inapplicable to an action under the Clean Water Act. Section 505(d) of the Clean Water Act, 33 U.S.C. § 1365(d) (1976), provides for an award of counsel fees for civil actions brought in district court pursuant to section 505(a), 33 U.S.C. § 1365(a) (1976). The Clean Water Act, however, is silent with respect to counsel fees for the type of action involved here, a petition for review in the court of appeals pursuant to section 509(b)(1), 33 U.S.C. § 1369(b)(1) (1976).

Section 505(d) provides:

The court, in issuing any final order in any action brought pursuant to this section, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. The court may, if a temporary restraining order or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the Federal Rules of Civil Procedure.

33 U.S.C. § 1365(d) (1976).

Section 505(a) provides:

Except as provided in subsection (b) of this section, any citizen may commence a civil action on his own behalf —

(1) against any person (including (i) the United States, and (ii) any other governmental instrumentality or agency to the extent permitted by the eleventh amendment to the Constitution) who is alleged to be in violation of (A) an effluent standard or limitation under this chapter or (B) an order issued by the Administrator or a State with respect to such a standard or limitation, or (2) against the Administrator where there is alleged a failure of the Administrator to perform any act or duty under this chapter which is not discretionary with the Administrator.

The district courts shall have jurisdiction, without regard to the amount in controversy or the citizenship of the parties, to enforce such an effluent standard or limitation, or such an order, or to order the Administrator to perform such act or duty, as the case may be, and to apply any appropriate civil penalties under section 1319(d) of this title.

33 U.S.C. § 1365(a) (1976).

Section 509(b)(1) provides, in part:

Review of the Administrator's action . . . . (C) in promulgating any effluent standard, prohibition, or pretreatment standard under section 1317 of this title . . . may be had by any interested person in the Circuit Court of Appeals of the United States for the Federal judicial district in which such person resides or transacts such business upon application by such person.

33 U.S.C. § 1369(b)(1) (1976).

Even in the face of such silence, EPA nonetheless asks us to hold that the Clean Water Act, not the Equal Access to Justice Act, governs the award of attorneys' fees in this case. EPA reads the legislative history of the Equal Access to Justice Act to preclude its application in any case brought pursuant to a statute which somewhere contains a counsel fee provision, even if that provision is inapplicable to the case at issue. We reject that reading of the legislative history.

NRDC does not request fees pursuant to section 505(d) of the Clean Water Act. To the extent that we must decide whether section 505(d) applies to this case in interpreting the language "[e]xcept as otherwise specifically provided by statute" in section 2412(d)(1)(A), we follow the decision of the court in Montgomery Environmental Coalition v. Costle, 646 F.2d 595 (D.C.Cir. 1981). In that case the court held that the fee-shifting provision in section 505(d) of the Clean Water Act does not apply to section 509 petitions for review.

The legislative history of the EAJA makes it clear that Congress intended not to affect cases where fees already could be awarded, but instead to make fee awards possible in additional cases when section 2412(d)(1)(A)'s requirements are met. The House Report explains that

this section is not intended to replace or supercede any existing fee-shifting statutes such as the Freedom of Information Act, the Civil Rights Acts, and the Voting Rights Act in which Congress has indicated a specific intent to encourage vigorous enforcement, or to alter the standards or the case law governing those Acts. It is intended to apply only to cases (other than tort cases) where fee awards against the government are not already authorized.

House Report, supra, at 18, U.S. Code Cong. Admin. News 1980, p. 4997 (emphasis added). See S.Rep. No. 253, 96th Cong., 1st Sess. 10 (1979) [hereinafter "Senate Report"]. We conclude that a section 509 petition under the Clean Water Act is just such a case where Congress has not already authorized a fee award.

EPA cites comments made by Senator Kennedy on the floor of the Senate in support of its position. Senator Kennedy stated,

In general, statutes such as the Freedom of Information Act and civil rights laws, which contain special fee-shifting provisions remain unaffected by this measure, even if the standard for awarding fees under the statute has evolved through case law and is not set out in the statute itself.

125 Cong.Rec. 21445 (1979). We read Senator Kennedy's language, however, as merely reiterating the general principle explained in the House Report and adopted in this opinion.

Congress intended the EAJA to expand the potential for fee awards under certain circumstances, not to freeze the absence of counsel fee provisions in existing statutes. In this case where there is no applicable fee-shifting provision in the Clean Water Act, acceptance of EPA's reading of the EAJA would create "a no-man's land contrary to clearly expressed Congressional purposes." Ocasio v. Schweiker, 540 F. Supp. 1320, 1323 (S.D.N.Y. 1982).

EPA analogizes the statutory scheme of the Clean Water Act to that of the Clean Air Act in attempting to preclude application of the EAJA. Both the Clean Water Act in section 505(d), 33 U.S.C. § 1365(d) (1976), and the Clean Air Act in section 304(d), 42 U.S.C. § 7604(d) (Supp. I 1977), provide for an award of attorneys' fees in suits brought in district courts. Both acts, however, were initially silent concerning attorneys' fees for petitions for review in courts of appeals. The United States Court of Appeals for the District of Columbia Circuit held that section 304(d) of the Clean Air Act did not provide counsel fees for petitions for review under the Clean Air Act. NRDC v. EPA, 512 F.2d 1351 (D.C.Cir. 1975). Contra NRDC v. EPA, 484 F.2d 1331 (1st Cir. 1973).
Congress responded to the D.C.Circuit's opinion by amending the Clean Air Act to include a counsel fees provision covering petitions for review under that Act. 42 U.S.C. § 7607(f) (Supp. 1 1977). EPA emphasizes Congress' failure similarly to amend the Clean Water Act. EPA seems to argue that Congress's failure to amend the Clean Water Act to provide counsel fees for section 509 actions precludes the application of the EAJA as well.
The D.C.Circuit, however, recognized that there were two avenues available to Congress if it wished to provide counsel fees for petitions for review under the Clean Air Act. NRDC v. EPA, 512 F.2d at 1357. Congress could amend the Clean Air Act itself to include a fee-shifting provision covering petitions for review, id., a course which Congress ultimately took in 42 U.S.C. § 7607(f) (Supp. I 1977). Alternatively, the court suggested that Congress could expand 28 U.S.C. § 2412 (1976) to include an award of attorneys' fees in addition to costs against the United States, see supra note 4. Id. Congress also eventually pursued the latter course in passing the EAJA.
Clearly the EAJA does not apply to petitions for review under the Clean Air Act, given the specific fee-shifting provision passed by Congress in 42 U.S.C. § 7607(f). We reject the notion, however, that the EAJA is inapplicable to petitions for review under the Clean Water Act. Congress' failure to amend the Clean Water Act as it amended the Clean Air Act in no way precludes the application of the EAJA to this case. Cf. Hall v. Cole, 412 U.S. 1, 10-11, 93 S.Ct. 1943, 1948, 36 L.Ed.2d 702 (1973) (refusal to draw negative inferences from Congressional silence in a statute where fees are otherwise available under common-law exceptions to the American rule); Mills v. Electric Auto-Life Co., 396 U.S. 375, 389-91, 90 S.Ct. 616, 624, 24 L.Ed.2d 593 (1970) (same); Brennan v. United Steelworkers of America, 554 F.2d 586, 591-94 (3d Cir. 1977) (same).

The Ocasio court rejected the Social Security Administrator's argument that the EAJA is inapplicable to social security cases because of the existence of a fee provision in the Social Security Act, 42 U.S.C. § 406(b)(1) (1976). Section 406(b)(1) authorizes a fee award of up to 25% of any past-due benefits awarded the client. relying on the legislative history of the EAJA, the court concluded that section 406(b)(1) "does not authorize fee awards against the government." 540 F. Supp. at 1322. The court thus concluded that the conditional language of the EAJA does not preclude the application of the EAJA to cases involving review of decisions of the Social Security Administrator. Id.; accord Wolverton v. Schweiker, 533 F. Supp. 420 (D.Idaho 1982); Berman v. Schweiker, 531 F. Supp. 1149 (N.D.Ill. 1982); Shumate v. Harris, 544 F. Supp. 779 (W.D.N.C. 1982) (same).

We hold therefore that section 2412(d)(1)(A) of the EAJA is applicable to a petition for counsel fees incurred in a review proceeding pursuant to section 509 of the Clean Water Act. We now turn to EPA's claim that its position was substantially justified.

B. Definition of the Act's Terms

The Equal Access to Justice Act, 28 U.S.C. § 2412(d), provides for an award of fees to the prevailing party, which NRDC unquestionably is, "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). No "special circumstances" are relied upon, and thus we must determine what Congress meant when it used the terms "position" and "substantially justified."

Because the Act has only been in effect since October 1, 1981 it has yet to receive much attention from appellate courts. Our decision in Goldhaber v. Foley, 698 F.2d 193 (3d Cir. 1983), does not reach the question presented in this case. Two courts of appeals seem to have adopted the dissent's position that "position of the United States" refers to the "position of the United States taken in litigation before the courts," rather than the "position taken by an agency of the United States which made it necessary for the party to file the action." Broad Avenue Laundry and Tailoring v. United States, 693 F.2d 1387 (Fed.Cir. 1982); Tyler Business Services, Inc. v. National Labor Relations Board, 695 F.2d 73 (4th Cir. 1982). See also S H Riggers Erectors, Inc. v. OSHRC, 672 F.2d 426, 431 (5th Cir. Unit B 1982) (examines litigation position). The interpretation adopted by the dissent and the Broad Avenue, Tyler and Riggers courts means that no matter how outrageously improper the agency action has been, and no matter how intransigently a wrong position has been maintained prior to the litigation, and no matter how often the same agency repeats the offending conduct, the statute has no application, so long as employees of the Justice Department act reasonably when they appear before the court. Such an interpretation ignores a defined term in the statute:

(C) "United States" includes any agency and any official of the United States acting in his or her official capacity.

28 U.S.C. § 2412(d)(2)(C). While the statute does not define "position," it does define "United States" disjunctively. Thus plainly, "position of the United States" means position taken by "any agency and any official of the United States acting in his or her official capacity." Only hostility to the underlying legislative purpose, we suggest, would permit a reading of the words "position of the United States" in isolation from the accompanying definition.

Among the trial courts, a significant number of well-reasoned opinions have held that the underlying conduct of the agency, not merely its trial conduct, must be considered. Moholland v. Schweiker, 546 F. Supp. 383, 386 (D.N.H. 1982); Nunes-Correia v. Haig, 543 F. Supp. 812, 816 (D.D.C. 1982); Wolverton v. Schweiker, 533 F. Supp. 420, 425 (D.Idaho 1982); Photo Data, Inc. v. Sawyer, 533 F. Supp. 348, 352 (D.D.C. 1982); Gava v. United States, No. 817-78, slip op. at 23 (Ct.Claims Tr.Div. July 20, 1982). But see, however, Lauritzen v. Secretary of the Navy, 546 F. Supp. 1221, 1226 n. 6 (C.D.Cal. 1982); Operating Engineers Local Union No. 3 v. Bohn, 541 F. Supp. 486, 493-96 (D.Utah 1982); Berman v. Schweiker, 531 F. Supp. 1149, 1154 (N.D.Ill. 1982); Alspach v. District Director of Internal Revenue, 527 F. Supp. 225, 228 (D.Md. 1981) (focus on litigation position). The proper interpretation of the Act is a matter of first impression in this circuit, and we should interpret it consistently with its plain meaning and the intention of Congress. We hold that the word "position" refers to the agency action which made it necessary for the party to file suit.

The statute's legislative history establishes beyond question that Congress intended that the statute provide an incentive for suits to control agency actions, not merely to make Justice Department litigators behave. There are overwhelming references to that effect and none to the contrary. See generally 126 Cong.Rec. H. 10213-225 (daily ed. October 1, 1980); 125 Cong.Rec. S. 10914-924 (daily ed. January 31, 1979). In Senator DeConcini's Report on the Act for the Senate Judiciary Committee he observed:

The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and fact, no award will be made. In this regard, the strong deterrents to contesting Government action require that the burden of proof rest with the Government. This allocation of the burden in fact, reflects a general tendency to place the burden of proof on the party who has readier access to and knowledge of the facts in question. The committee believes that it is far easier for the Government, which has control of the evidence, to prove the reasonableness of its action than it is for a private party to marshal the facts to prove that the Government was unreasonable.

Senate Report at 6 (emphasis supplied). The reference to the government having in its control evidence to prove the reasonableness of its action can have no other possible meaning than reasonableness of the agency action. That intention is evidenced further on the next page of the Senate Report:

Under existing fee-shifting statutes, the definition of prevailing party has been the subject of litigation. It is the committee's intention that the interpretation of the term in S. 265 be consistent with the law that has developed under existing statutes. Thus, the phrase "prevailing party" should not be limited to a victor only after entry of a final judgment following a full trial on the merits. A party may be deemed prevailing if he obtains a favorable settlement of his case, Foster v. Boorstin, 561 F.2d 340 (D.C.Cir. 1977); if the plaintiff has sought a voluntary dismissal of a groundless complaint, Corcoran v. Columbia Broadcasting System, Inc., 121 F.2d 575 (9th Cir. 1941); or even if he does not ultimately prevail on all issues, Bradley v. School Board of the City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).

In cases that are litigated to conclusion, a party may be deemed "prevailing" for purposes of a fee award in a civil action prior to the losing party having exhausted its final appeal. A fee award may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Matthews, 411 F. Supp. 1059, 1064 (D.D.C. 1976), or where an interlocutory appeal is "sufficiently significant and discrete to be treated as a separate unit", Van Hoomissen v. Xerox Corp., 503 F.2d 1131, 1133 (9th Cir. 1974).

Senate Report at 7 (emphasis supplied). The same language appears in Congressman Kastenmeier's Report for the House Judiciary Committee. House Report at 11. If the Department of Justice offers to settle a case its litigation position cannot be faulted. But as the Senate Report makes clear, the beneficiary of the settlement may be deemed the prevailing party. The reference to settlements makes plain that "position of the United States" must have been meant to include not only the litigation position, which will more often than not be determined by the Justice Department, but also the agency position which made the lawsuit necessary. Lest there be any doubt, the Senate Report continues:

Providing an award of fees to a prevailing party represents one way to improve citizen access to courts and administrative proceedings. When there is an opportunity to recover costs, a party does not have to choose between acquiescing to an unreasonable Government order or prevailing to his financial detriment. Thus, by allowing an award of reasonable fees and expenses against the Government when its action is not substantially justified, S. 265 provides individuals an effective legal or administrative remedy where none now exists. By allowing a decision to contest Government action to be based on the merits of the case rather than the cost of litigating, S. 265 helps assure that administrative decisions reflect informed deliberation.

Senate Report at 7. Moreover in the section-by-section analysis of the Act in the Senate Report at 15 and the House Report at 14, U.S. Code Cong. Admin. News 1980, p. 4993, it is noted:

The standard and burden of proof adopted in S. 265 represents [sic] an acceptable middle ground between an automatic award of fees and the restrictive standard proposed by the Department of Justice. It presses the agency to address the problems of abusive and harassing regulatory practices.

(emphasis supplied). Clearly, an agency is not pressed by the Act with respect to abusive and harassing regulatory practices if those practices are not even taken into account in making a fee award.

The Congressional understanding of the meaning of "position of the United States" emerges with even greater clarity from the floor debates. When Senator Domenici introduced the Equal Access to Justice Act, S. 265, on January 31, 1979, the following colloquy between Senators Domenici and Proxmire occurred:

MR. PROXMIRE: Does that bill provide that if a citizen brings suit against the Government and he wins, his attorneys' fees would be paid by the Government?

MR. DOMENICI: If the Government could not substantiate that the position that it has taken, that the citizen seeks to have overturned.

125 Cong.Rec. S. 891 (daily ed. Jan. 31, 1979) (emphasis supplied).

The bill was discussed at length on July 31, 1979, and that discussion is replete with statements by the legislators that "position of the United States" included position taken by an agency in agency proceedings. For example:

SENATOR NELSON: In cases such as this, if the individual or business prevails over the Government, and the Government's action is wrong, there is no reason why the Government should not have to pay the attorney's fees and court costs of those who were injured. . . .

125 Cong.Rec. S. 10922 (daily ed. July 31, 1979).

SENATOR KENNEDY: We can no longer tolerate a legal system under which unreasonable governmental action affecting small businesses . . . goes unchallenged because the victims are deterred by the legal expense involved.

Id. S. 10933.

SENATOR DeCONCINI: Under this bill [S. 265], . . . individuals and small businesses which prevail . . . in civil actions . . . will be able to recover their attorney fees unless the Government can show that its action was substantially justified.

Id. S. 10914. Throughout the debate the legislators placed clear emphasis on governmental action, not governmental litigation position. The pervasive theme of the debate was the goal of encouraging "little people" to challenge unreasonable actions by government bureaucrats instead of acquiescing because of the expense of a legal challenge. As Senator DeConcini explained:

Through the device of fee-shifting, the bill attempts to overcome the financial obstacles which prevent citizens from challenging the unreasonable exercise of Government authority.

. . . . .

It is also intended to affirmatively encourage citizens to challenge actions which they believe to be unreasonable or irresponsible. It recognizes that those who choose to litigate an issue against the Government are not only representing their own vested interests they are also refining public policy, correcting errors on the part of the Government, and helping to define the limits of Federal authority. In short, people are serving public policy and a public purpose.

Id. Senator DeConcini's concern about encouraging challenges to arbitrary and unreasonable bureaucratic action was echoed by Senator Dole, who observed:

There are vast resources that enforce the arbitrary decisions of autocratic bureaucrats, but there are very few individuals or small businesses that can afford to fight back. As these rules and regulations continue to multiply, Americans grow more and more reluctant to contest regulations because of the astonishing cost of litigation. This bill seeks to create an atmosphere in which citizens are not intimidated by litigation cost. The enactment of this legislation will make it financially possible for the citizens of our Nation to question the governmental decisions.

. . . . .

If bureaucrats knew that more of their actions would be subjected to questions in court, I believe that the tendency of many bureaucrats to be careless, arbitrary, and irresponsible would cease.

Id. S. 10915. Similarly, Senator Stevens commented:

This legislation will have a twofold benefit. In the short run, it provides individuals with a remedy which they do not now have, thereby releasing them to make decisions as to the advisability of litigation based on the merits of the case rather than the costs and, in the long run, it becomes a way to curb outlandish regulations issued by Government authority.

Id. Senator Dole's and Senator Stevens' concern about encouraging litigation to curb outlandish regulation was also voiced by Senator Domenici, who observed:

This legislation would mark the beginning of a new stage. It would mark the readjustment of the tension which exists between the citizen and the Federal agencies which govern their lives. The pendulum has swung too far to the side of the bureaucracy.

. . . . .

The basic problem to overcome is the inability of many Americans to combat the vast resources of the Government in administrative adjudication.

. . . . .

Today, the average American must be made to feel that he can question the exercise of the Government's discretionary power as to its reasonableness — without incurring large costs if he prevails.

Providing for award of legal fees to prevailing private litigants, except where the governmental action was substantially justified, will not deter the Government from pursuing meritorious governmental action. The purpose is to readjust the position between the Government acting in its regulatory capacity and individual rights. It is to insure against capricious and arbitrary Federal regulation.

Id. S. 10916. The intention to police the agencies was reiterated by Senator DeConcini, who continued:

We also, in this bill, assess the cost to the agency that loses and is charged by the court. So they are going to know each year how many of their attorneys, their regulators, have been arbitrary and caused them to go after citizens who, in turn, beat the Government and get their attorneys' fees and court costs reimbursed.

Id. S. 10917. Senator Thurmond put it succinctly:

The second purpose of S. 265 is to encourage the agency to be as careful as possible in the exercise of its regulatory powers and to be more responsible to citizen needs. The implicit assumption in the approach taken by this legislation is that affecting the "pocketbook" of the agency is the most direct way to assure more responsible bureaucratic behavior.

Id. S. 10920. Senator McClure noted:

As it now stands, Federal bureaucracies have, in effect, the power to money whip too many individuals, firms, and municipalities into submission, even when those agencies are in the wrong. The balance can be redressed to a degree if a person knows that if he is proven right, he will be reimbursed the full cost of litigation.

Id. S. 10921. Senator Nelson explained:

In a civil case, when an individual or small business successfully challenges an order, rule, or regulation on the merits, the Government may be required to reimburse the "victim" for attorney's fees and court costs from the agency's operating budget.

This approach has two salutary effects. First, it redresses an injustice to the victim which was caused by the Government itself. Second, it will have a chilling effect on presently unrestrained regulators who have a tendency to be careless, insensitive, arbitrary or irresponsible.

Id. S. 10922. Similar sentiments were expressed by Senator Goldwater, id. S. 10917, Senator Ford, id. S. 10918, Senator Bayh, id. S. 10923, Senator Kennedy, id., and Senator Warner, id. S. 10924.

No legislator in either the Senate or the House said anything which suggests that the Act applies only to the government's litigation position. There is not a scintilla of legislative history that, fairly read, suggests that Congress did not mean to incorporate in the term "position of the United States" the definition that United States includes "any agency and any official of the United States acting in his or her official capacity." Indeed, the legislative history suggests overwhelmingly and unequivocally that this was precisely what Congress intended. Interpreting the Act so as to restrict application of the Act to the government's litigation position and exclude consideration of the bureaucratic action which necessitated the lawsuit would remove the very incentive which Congress unquestionably intended to provide.

The EPA relies on the fact that Congress did not impose strict liability by providing for an automatic award to the prevailing party, but instead used language, similar to that in Fed.R.Civ.P. 37, permitting a fee award against a party resisting a discovery motion unless the party's resistance is substantially justified. The substantial justification language may have been borrowed from one of the Federal Rules of Civil Procedure, but that premise lends no support for the illogical syllogism the EPA erects from it. The bill as originally drafted provided simply for a fee award to the prevailing party. Senator DeConcini explained its evolution:

The original bill introduced by my distinguished colleague from New Mexico in the 95th Congress provided for a mandatory award of fees. However, when the subcommittee held a hearing on the bill, the Department of Justice expressed concern over the bill's potential cost and its potential chilling effect on legitimate Government enforcement efforts. The Department drafted an alternative proposal which would allow fees where the Government action was "arbitrary, frivolous, unreasonable or groundless."

Id. S. 10914. The Justice Department position in Congress was far short of how the EPA urges this court to interpret the Act. The Justice Department's alternative proposal plainly focused on the agency action, but would have permitted an award only if that action was "arbitrary, frivolous, unreasonable or groundless." Senator DeConcini continued:

The bill we have before us represents a middle ground between the mandatory award and the Department's standard.

Id. The EPA would rewrite the Act not so that it represents a middle ground, but to give it a meaning that even the Justice Department never sought. See House Report at 15. The reason why the substantial justification language of Rule 37 was chosen was not, as the EPA illogically deduces, in order to restrict the application of the Act to litigation positions, but because, as Senator DeConcini explained:

[Rule 37] places the burden on the Government to justify its actions in order to defeat an award.

125 Cong.Rec. S. 10914. Congress was well aware that Rule 37 had just recently been amended by changing the burden to provide for fees unless opposition to a discovery motion was substantially justified, a departure from the former standard which required a finding that the opposition to discovery was unjustified. See 4A J. Moore, Moore's Federal Practice ¶ 37.02[10] at 37-49 (2d ed. 1982). Congress understood that the showing of substantial justification was required not only for a litigation position, but for a disputed agency action. Nowhere, perhaps, is that understanding disclosed more clearly than in the remarks by Senator Kennedy, who at first had serious concerns about the legislation, but eventually supported it. He explained his change of heart, however, by noting:

First, the report makes clear that the "special circumstances" which defeat entitlement to attorneys fees, include situations where the agency advances a novel extension of the law to areas and there is insufficient legal precedent to establish the reasonableness of the agency action. As the report states, if it is a "novel but credible" application of the law to the facts at hand, then the agency would not be liable for attorneys fees.

. . . . .

As the report indicates, however, under this bill, an agency could show its decision to go forward was reasonable, without establishing that prospectively there had been a substantial probability it would win.

125 Cong.Rec. S. 10923. Thus the only senator who in the entire debate on the Act expressed any serious concerns about protecting federal agencies acknowledged that the substantial justification language applied not only to the government's litigation position, but to the agency's decision to take a position with respect to the meaning of the regulatory statute. The House Report confirms Senator Kennedy's understanding:

The standard and burden of proof adopted in S. 265 represents [sic] an acceptable middle ground between an automatic award of fees and the restrictive standard proposed by the Department of Justice. It presses the agency to address the problem of abusive and harassing regulatory practices.

House Report at 14.

Reliance on references in the House Report to the government's "decision to litigate" or "pursuing litigation" lends no support to the EPA's reading of the statute. Undoubtedly fees can be awarded on the basis that the government did not justify its litigation position. But it is a classic non sequitur to conclude that because fees can be awarded when the government's post-complaint litigation position was not substantially justified, it follows that they cannot be awarded when its pre-complaint agency position was not justified. Thus the legislative history references relied upon simply lend no support to the dissent's position. The additional references to a discussion in the House Report of "position and actions during the course of proceedings," when placed in proper context, actually point the other way. The references plainly are to proceedings in the agency as well as in court.

C. Substantial Justification For EPA's Position

Having decided that the conduct to examine is the agency's pre-litigation position, we must determine whether the EPA's position was substantially justified. We hold that on this record the agency has failed utterly to establish substantial justification. For its action to be substantially justified, the government must make a "strong showing" that its position was substantially justified. House Report at 16, 18. Deciding whether the agency has carried the burden of showing substantial justification for its position is in this case easy. The point at issue in this case was the agency's decision to dispense with notice and comment in rulemaking. The law was already settled that this could not lawfully be done. Sharon Steel Corp. v. EPA, 597 F.2d 377 (3d Cir. 1979). The panel which decided the merits of this case observed that EPA's defense "circumvent[ed] Sharon Steel and the APA." NRDC v. EPA, 683 F.2d 752, 768 (3d Cir. 1982). Nor could the agency possibly have believed that the repeal of a rule is not rulemaking, because the APA specifically provides that repeal of a rule is rulemaking subject to notice and comment requirements. 683 F.2d at 765. Moreover, the agency's own subsequent conduct in treating further postponement as rulemaking reveals that the EPA knew all along that its position was legally untenable. It nevertheless continued to resist reinstatement of the repealed rules, even after the lawsuit was filed. If ever a case fit precisely the mold of bureaucratic arbitrariness which one senator after another stated as the target of the Equal Access to Justice Act, this is the case.

The EPA suggests that it responded to the lawsuit in a commendable way. Caught redhanded in a violation of the law on notice and comment rulemaking, it terminated the indefinite postponement, established an effective date for the amendments, and initiated a notice and comment period before any further postponement. Nevertheless the EPA continued to insist that it was free to litigate the issue of the initial postponement. It forced the NRDC to brief and argue the case, and this court to order reinstatement of the initial regulations which the agency had illegally set aside. No fair reading of our decision in NRDC v. EPA can construe it as a decision substantially justifying the EPA's position.

D. The Fee Award

Because we hold that the government failed to carry its burden of substantial justification for the pre-complaint position of the agency, we must address several other issues raised by the parties. These are: (1) whether fees may be awarded for time expended prior to the effective date of the Act; (2) whether the Act provides for compensation for Freedom of Information Act activity; (3) the adequacy of the affidavits supporting the fee application; and (4) the appropriate hourly rate.

The government contends that fees are not awardable for services performed prior to the effective date of the Act. That position is inconsistent with the plain language of the statute, which permits payment of fees in any "civil action . . . which is pending on . . . [the effective date, October 1, 1981]." Pub.L. No. 96-481, § 208, 94 Stat. 2330 (1980). The test is not when the services were rendered, but whether the action was pending on October 1, 1981. This action was instituted by a petition for review filed on June 24, 1981, and thus the case was pending on the effective date. Except for one aberration, every court which has considered the question has interpreted the Act to reach services performed prior to the effective date. See, e.g., Tyler Business Services, Inc. v. NLRB, 695 F.2d at 77; United States For Heydt v. Citizens State Bank, 668 F.2d 444, 448 (8th Cir. 1982); Lauritzen v. Secretary of Navy, 546 F. Supp. at 1224 n. 2; Nunes-Correia v. Haig, 543 F. Supp. at 815-16; Wolverton v. Schweiker, 533 F. Supp. at 423; Photo Data, Inc. v. Sawyer, 533 F. Supp. at 350; Berman v. Schweiker, 531 F. Supp. at 1151; Gava v. United States, No. 817-78, slip op. at 7. Cf. Commodity Futures Trading Corp. v. Rosenthal, 537 F. Supp. 1094 (N.D.Ill. 1982); Allen v. United States, 547 F. Supp. 357 (N.D.Ill. 1982). Interpreting the Act so as to compensate, in pending cases, for services rendered before its effective date is consistent with the interpretation of similar legislation by the Supreme Court. See Hutto v. Finney, 437 U.S. 678, 694 n. 23, 98 S.Ct. 2565, 2575 n. 23, 57 L.Ed.2d 522 (1978) ( 42 U.S.C. § 1988); Bradley v. School Board of the City of Richmond, 416 U.S. 696, 711-21, 94 S.Ct. 2006, 2016-21, 40 L.Ed.2d 476 (1974) (20 U.S.C. § 1617).

The government also objects to compensating NRDC for time spent in procuring information through the Freedom of Information Act, because that route to information is not conventional discovery. That position is inconsistent with the Act's definition of fees and expenses which "includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case, and reasonable attorney fees. . . ." 28 U.S.C. § 2412(d)(2)(A) (1976 Supp. V 1981). The Freedom of Information Act work was performed after the petition for review was filed, and may well have been more expeditious than conventional discovery, particularly in a petition for review over which this court rather than a district court had jurisdiction. Allowing compensation for such efforts is entirely consistent with the definition of fees and expenses in the Act, and with the policies which it embodies.

Nor are we impressed with the government's objection to the sufficiency of the attorney's supporting affidavits in support of the award requested. The agency's position seems to be, on the one hand, that the affidavit is too general, and, on the other hand, that too much time was spent in preparing it. The hours, dates, times and descriptions are included, along with affidavits from experts establishing that the hourly rates charged were below those normally charged by attorneys of comparable experience. The agency complains that some of the legal work involved preparing responses to positions raised by industry intervenors who supported its action in rescinding regulations without notice and comment. But clearly NRDC would not have been forced to address those points except for the agency's insistence on litigating. The affidavits are, in our view, in satisfactory compliance with 28 U.S.C. § 2412(d)(1)(B).

Finally, NRDC urges that an award in excess of $75.00 an hour is appropriate because the court should determine "that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys for the proceedings involved, justifies a higher fee." 28 U.S.C. § 2412(d)(2)(A). NRDC seeks an adjustment to $77.86 an hour because of the increased cost of living occurring since the effective date of the Act on October 1, 1981. The calculation is made on the basis of the Consumer Price Index published by the Bureau of Labor Statistics. The Act plainly delegates to the court authority to make such an adjustment, although with little guidance as to when it is appropriate. The purpose of the statute was to encourage challenges to agency action, and the cost of living adjustment provision seems designed to provide a disincentive to agencies to prolong the litigation process. The required adjustment should therefore be made.

IV. CONCLUSION

The total award requested is $34,375.85. We will order that the NRDC's request for reasonable attorneys' fees and expenses under 28 U.S.C. § 2412(d)(1)(A) be granted in the amount requested.