Alyeska Pipeline Service v. Wilderness Society Brief for LDF as Amicus Curiae

    I n  t h e

§>ttprati£ ©Hurt of ilii? lntfrj& Bt&Ub
O ctober T erm , 1974 

No. 73-1977

A lyeska  P ipe l in e  S ervice,

v.
Petitioner,

W ilderness S ociety, et al.

ON W RIT OF CERTIORARI TO T H E  U N ITED  STATES COURT OF APPEALS 

FOR T H E  DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

J ack Greenberg 
J ames M. N abrit, III 
E ric S ch n a pper  
C harles S t e p h e n  R alston 

10 Columbus Circle 
New York, N. Y. 10019 

Attorneys for the NAACP 
Legal Defense and 
Educational Fund, Inc.



TABLE OF CONTENTS

PAGE

Interest of Amicus Curiae............................................... 1

A r g u m e n t —

There Is No Bar to the Award of Counsel Fees 
for Work Done by Attorneys Employed by a 
Charitable Organization Under the Private At­
torneys General Buie .............. ..............................  3

Conclusion  .................. ............................................. ....................... 9



I n  t h e

iatprrme (Urntrt of tf|£ Initrii States
O ctober T erm , 1974 

No. 73-1977

A lyeska P ipe l in e  S ervice,

v.
Petitioner,

W ilderness S ociety, et al.

ON W R IT OF CERTIORARI TO T H E  U N ITED  STATES COURT OF APPEALS 

FOR T H E  DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR THE NAACP LEGAL DEFENSE AND 
EDUCATIONAL FUND, INC., AS AMICUS CURIAE

Interest of Am icus Curiae*

The NAACP Legal Defense and Educational Fund, Inc., 
is a non-profit corporation, incorporated under the laws of 
the State of New York in 1939. It was formed to assist 
Negroes to secure their constitutional rights by the pro­
secution of lawsuits. Its charter declares that its purposes 
include rendering legal aid gratuitously to black persons 
suffering injustice by reason of race who are unable, on 
account of poverty, to employ legal counsel on their own

* Letters of consent from counsel to the filing of this brief for 
the petitioners and the respondents have been filed with the Clerk 
of the Court.



2

behalf. The charter was approved by a New York court, 
and authorizes the organization to serve as a legal aid 
society and to receive court-awarded counsel fees. The 
NAACP Legal Defense and Educational Fund, Inc. is inde­
pendent of other organizations and is supported by con­
tributions from the public. For many years its attorneys 
have represented parties in this Court and the lower courts, 
and it has participated as amicus curiae in this Court and 
other courts, in cases involving many facets of the law.

The Legal Defense Fund has a vital interest in the firm 
establishment of the “private attorney general” basis for 
the award of counsel fees in public interest litigation, and 
its attorneys have brought to this Court a number of cases 
dealing with the issue, including Newman v. Piggie Park 
Enterprises, 390 U.S. 400 (1968); Northcross v. Board of 
Education of Memphis City Schools, 412 U.S. 427 (1973); 
Bradley v. School Board of the City of Richmond, 416 U.S. 
696 (1974); and Bridgeport Guardians, Inc. v. Bridgeport 
Civil Service Commission, No. 74-543 (petition for writ of 
certiorari pending). In the last ten years, since the passage 
of the first attorney’s fees provisions in Title II and Title 
VII of the Civil Eights Act of 1964, the Legal Defense 
Fund has been able to expand significantly the scope of its 
program. The recovery of attorneys’ fees for work done 
by lawyers employed by the Fund in cases involving em­
ployment, public accommodations, school desegregation, 
fair housing, voting rights, and other constitutional and 
statutory rights, provides a vitally important resource that 
helps to make the Fund’s work possible. Although peti­
tioner in this case disclaims any application of its argu­
ments to civil rights cases, and does not challenge the 
validity of the private attorney general rule itself, its 
final argument, that counsel fees cannot be awarded to 
attorneys employed by charitable organizations would also



3

bar the legal Defense Fund from such awards. Thus, the 
Fund has a direct interest in the outcome of this case.

ARGUMENT

There Is No Bar to the Award o f Counsel Fees for  
W ork Done by Attorneys Employed by a Charitable 
Organization Under the Private Attorneys General 
Rule.

Petitioner urges, in the alternative, that the court below 
lacked discretion to award counsel fees in the instant case 
because the plaintiffs are charitable organizations estab­
lished to protect the environment, and because plaintiffs’ 
counsel were provided by other charitable organizations 
established to provide free legal counsel in cases such as 
this.

This contention is not a novel one; it has been considered 
and rejected by five courts of appeals. Jordan v. Fusari, 
496 F.2d 646, 649 (2d Cir. 1974); Brandenhurger v. Thomp­
son, 494 F.2d 885, 889 (9th Cir. 1974); Fairley v. Patterson, 
493 F.2d 598, 606-07 (5th Cir. 1974); Natural Resources 
Defense Council v. Environmental Protection Agency, 484 
F.2d 1331, 1338 n. 7 (1st Cir. 1973); Wilderness Society v. 
Morton, 495 F.2d 1026 (D.C. Cir. 1974), cert, granted sub 
nom., Alyeska Pipeline Service v. Wilderness Society, No. 
73-1977. See also, Lea v. Cone Mills Gorp., 438 F.2d 86, 88 
(4th Cir. 1971).1 Only last term, this Court affirmed an

1 Three district courts have also rejected this argument. Clark 
v. American Marine Corp., 320 F. Supp. 709, 711 (E.D. La. 1970) ; 
La Baza TJnida v. Volpe, 57 F.R.D. 94, 98 n. 6 (N.D. Calif. 1972) ; 
Stephens v. Dobs, Inc., 373 F. Supp. 618, 621 (E.D. N. Car. 1974) ; 
Two district court opinions denying counsel fees on this ground 
were reversed by the Fifth Circuit. See, Miller v. Amusement 
Enterprises, Inc., 426 F.2d 534 (5th Cir. 1970), reversing an un- 
reported decision in the Eastern District of Louisiana (West, J.) • 
and Fairley v. Patterson, 493 F.2d 598 (5th Cir. 1974), reversing 
an unreported decision in the Southern District of Mississippi 
(Cox, J.).



4

award of counsel fees to a charitable organization and pri­
vate counsel associated with it. Bradley v. School Board of 
the City of Richmond, 416 U.S. 696 (1974).

Petitioner urges first that an award of counsel fees is 
impermissible in this case because the plaintiffs are chari­
table organizations whose goals include the protection of 
the environment through litigation. This argument mis­
conceives the purpose of a private attorney general rule. 
That rule was not fashioned to give potential plaintiffs a 
greater financial interest in litigation; any fees awarded 
are paid, not to the party itself, but to its counsel. The 
Wilderness Society interest in clean air or the protection 
of endangered species is certainly no greater than the in­
terest of a black child in attending an integrated school. 
See, Sierra Club v. Morton, 405 U.S. 727 (1972). Counsel 
fees are necessary to make possible the prosecution of 
litigation such as this where there is no realistic chance 
of monetary damages out of which a fee might be paid. See, 
Newman v. Piggie Park Enterprises, Inc., 390 U.S. 400, 
402 (1968). Petitioner does not suggest that charitable 
organizations in general, or the Wilderness Society in 
particular, have such vast resources as to be able to hire 
counsel to bring every public interest law suit in which 
they have a substantial interest. On the contrary, it is 
undisputed that, even in the instant case, plaintiffs were 
represented not by hired counsel, but by attorneys who 
undertook to do so without charge.

Petitioner argues in the alternative that counsel fees 
are inappropriate because in the instant case plaintiffs’ 
counsel were provided by another charitable organization, 
the Center for Law and Social Policy. An award of counsel 
fees is not inappropriate merely because an organization 
such as the Center is interested in providing counsel in 
cases such as this. The practical problem confronting such



5

an organization is the same as that which confronts private 
counsel; it has severely limited resources available to ex­
pend on non-fee generating litigation. Attorneys’ fees are 
provided, not merely to encourage such organizations to 
provide counsel in litigation of public importance, but also 
to augment their ability to do so. The fact that an organiza­
tion, like a private attorney, might undertake to support 
a few such cases out of its own resources does not militate 
against awarding counsel fees to permit it to undertake 
more.

The ancillary benefits of the private attorney general 
rule are equally applicable to litigation involving charitable 
organizations. The rule encourages counsel to pick out 
from among possible pro bono activities those matters of 
significant importance. Thus, such an organization has an 
incentive to devote its limited resources to litigation affect­
ing large numbers of people, not merely a handful of in­
dividual members. Ordinarily, a potential plaintiff, or an 
unpaid counsel, would be reluctant to undertake an action 
against multi-million dollar plaintiffs that can afford to 
wear them down through protracted litigation; the private 
attorney general rule tends to mitigate this problem in 
litigation of public importance.

Petitioner invites the Court to speculate that the existing 
incentives and resources available to charitable organiza­
tions are such as to make unnecessary the additional in­
centives and resources provided by the private attorney 
general rule. In fact, the handful of such organizations 
that exist can support only a small number of cases, com­
pared to the many thousands of employers, industrial 
plants, or school districts that may be involved in violations 
of the law. The practical experience of these organizations 
is that they handle no more than a fraction of the most 
important problems needing attention. It would be in-



6

appropriate for this Court to restrict the award of counsel 
fees to charitable organizations based on conjecture as to 
how much money these organizations can raise through 
contributions or foundation grants, how much litigation 
those funds can effectively support, and how those factors 
will be affected in the future by such imponderables as 
inflation, recession, and the fluctuations of the stock market. 
See, La Raza Unida v. Volpe, 57 F.R.D. 94, 98 n.6 (N.D. 
Calif. 1972).

The vitality of the private attorney general rule as 
an aid to civil rights litigation would be largely vitiated 
by the limitations urged by Petitioner. Despite the ex­
press Congressional sanction for counsel fees in such areas 
as employment discrimination, school desegregation, public 
accommodations, and housing, and notwithstanding this 
Court’s liberal construction of those provisions,2 the bulk 
of the litigation in such cases has continued to be brought 
by, or with the support of, a handful of civil rights 
organizations. The same is true of civil rights litigation 
falling under the equitable private attorney general rule. 
This pattern reflects the unwillingness of many attorneys, 
especially in the South, to undertake such litigation, the 
inability of most small practitioners to absorb the sub­
stantial day-to-day costs of such cases, and the essential 
expertise of those organizations. Not coincidentally, most 
of the cases in which defendants have opposed an award 
of counsel fees on the ground now urged by Petitioner have 
been civil rights cases brought by either the NAACP 
Legal Defense Fund or the Lawyers Committee for Civil 
Rights Under Law.3 To a substantial extent, such organiza-

2 Newman v. Piggie Park Enterprises, supra; Northcross v. 
Board of Education of Memphis City Schools, 412 U.S. 427 (1973).

3 See, Fairley v. Patterson, supra, (Lawyers’ Committee); 
Miller v. Amusement Enterprises, supra, (Legal Defense Fund) ;



7

tions have committed themselves to the support of partic­
ular cases and a volume of litigation on the assumption 
that they will be eligible for awards of counsel fees in the 
same circumstances as would private counsel.

Finally, the rule urged by Petitioner raises constitutional 
problems of considerable magnitude. A citizen aggrieved 
by a violation of his legal rights may often conclude that 
the most efficacious method of vindicating those rights is 
not through individual litigation, but through membership 
in an organization which engages in such litigation for or 
on behalf of its members. As this Court noted in N.A.A.C.P. 
v. Button, 371 U.S. 415, 429 (1963):

In the context of NAACP objectives, litigation is not 
a technique of resolving private differences; it is a 
means for achieving the lawful objectives of equality 
of treatment by all government, federal, state and local, 
for the members of the Negro community in this 
country. It is thus a form of political expression.

To cut off the possibility of counsel fees, and thus in many 
cases the possibility of obtaining the assistance of an 
attorney, merely because individuals seek to act through 
membership in such organizations, would impose an imper­
missible burden on the exercise of First Amendment rights. 
Similarly, an individual may legitimately prefer to be 
represented by counsel employed by or associated with a 
charitable organization. Such counsel may have greater 
expertise, a keener interest in the case, or a greater im­
munity from the pressures often brought to bear on counsel

Lea v. Cone Mills, supra, (Legal Defense Fund) ; Clark v. Amer­
ican Marine, supra, (Legal Defense Fund) ; Stephens v. Dobbs, 
Inc., supra, (Legal Defense Fund) ; Thompson v. Madison County 
Board of Education, 496 F.2d 682 (5th Cir. 1974) (Lawyers’ Com­
mittee) ; Johnson v. Georgia Highway Express, 488 F.2d 714 (5th 
Cir. 1974) (Legal Defense Fund).



8

handling unpopular cases. To restrict an individual’s 
ability to obtain such representation by limiting awards 
of counsel fees to attorneys the individual does not want or 
trust would present an unwarranted interference with the 
individual’s right to the assistance of counsel of his or her 
choice. See, Sanders v. Russell, 401 F.2d 241, 244-47 (5th 
Cir. 1968); Fairley v. Patterson, 493 F.2d 598, 607 n. 14 
(5th Cir. 1974). Thus, the acceptance of Petitioners’ argu­
ment would result in, in practical effect, the undermining 
of the entire purpose of the private attorney general rule.



9

CONCLUSION

For the foregoing reasons, the decision of the court 
below should be affirmed.4

Respectfully submitted,

J ack G-reenberg 
J ames M. N abrit, III 
E ric S ch n a pper  
Charles S t e ph e n  R alston 

10 Columbus Circle 
New York, N. Y. 10019 

Attorneys for the NAACP 
Legal Defense and 
Educational Fund, Inc.

4 Amicus feels that it should eall to the Court’s attention an 
alternative basis for upholding an award of counsel fees to the 
Respondents, although one that would not result in their being 
assessed against the Petitioner. Both the parties and the court of 
appeals assumed throughout this aspect of the litigation that the 
United States is not liable for an award of counsel fees because of 
sovereign immunity or the provisions of 28 U.S.C. § 2412. The 
correctness of this assumption is challenged in Pyramid Lake 
Piute Tribe v. Morton, No. 74-842. That limitation applies only to 
an award of counsel fees directly from the Treasury, and would 
not bear on the propriety of such an award from a fund created by 
private litigation and payable to the United States. See, Sprague 
v. Ticonic National Bank, 307 U.S. 161 (1939). In the instant 
ease, plaintiffs succeeded in compelling petitioner to seek approval 
of the Trans-Alaska Pipeline from Congress, and Congress in turn 
required as a condition of that approval that Petitioner pay to the 
United States a sum equal to the fair market value of the right of 
way on which the pipeline is constructed. This sum will doubtless 
involve several millions of dollars, and would not have been pay­
able to the United States had not the plaintiffs successfully prose­
cuted the instant litigation. Amicus would suggest that plaintiffs’ 
counsel fee might properly be deducted from this sum, and if this 
were done, the Court need not reach the issues presented by 
Petitioner.



MEILEN PRESS INC. — N. Y. C. 21S