gained by allowing the intervention of PEPA as an additional party to an already complex litigation.
These arguments were reasonable and they undermine PEPA's charge, which in any event is not further substantiated, that the "circumstances and precedents strongly supported . . . intervention." Although the government did not prevail on that issue, it was not "so one sided as to render [the government's] position clearly unjustifiable." Dubose, 761 F.2d at 919. Moreover, permissive intervention is a matter of judicial discretion, and although it is frequently granted, it is also frequently denied. It was reasonable for the government to ask the Court to exercise its discretion in the government's favor in order to avoid complicating the case unnecessarily by the addition of a party whose interests were already being protected by others quite capable of carrying the ball.
The government contends that PEPA should not recover because "special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). In particular, the government contends that recovery would be unjust because PEPA was joined in this action by other parties who are ineligible under the EAJA and there is no indication that their vigorous challenge depended on the participation of PEPA. The government relies on Louisiana v. Lee, 853 F.2d 1219, 1225 (5th Cir. 1988) for the proposition that "if the party ineligible for fees is fully willing and able to prosecute the action against the United States, the parties eligible for EAJA fees should not be able to take a free ride through the judicial process at the government's expense."
PEPA responds that Louisiana v. Lee is contrary to the law of this Circuit and that, even if that decision were applicable, PEPA should recover because, instead of getting a "free ride" from the other parties, PEPA was in fact the "prime mover" in the litigation.
In Sierra Club v. U.S. Army Corps of Engineers, 776 F.2d 383 (2d Cir. 1985) a divided Court of Appeals overruled the district court's holding that the ineligibility under EAJA of one of twelve plaintiffs was attributable to all the plaintiffs and that therefore none of the plaintiffs could recover. Judge Meskill's dissent, which upheld the district court's argument, was adopted by Louisiana v. Lee on which the government relies. Judge Meskill wrote that:
The EAJA was passed for a specific purpose; to ensure that parties would not be prevented from contesting government action simply because they could not afford to litigate the matter. When a group of twelve plaintiffs, one of whom has a networth of over $ 1 million [and is thus ineligible], join together, congressional concern about access to the courts is not implicated. Indeed, it seems incongruous to hold that if the ineligible plaintiff alone challenged [the government], fees could not be awarded under the EAJA, but because the ineligible plaintiff was joined by less wealthy friends, fees may be awarded.
Sierra Club, 776 F.2d at 394 (citation omitted); Louisiana v. Lee, 853 F.2d at 1223-24.
The majority in Sierra Club, agreed with Judge Meskill that the non-eligibility under the EAJA of non-applicant parties should be considered in determining an otherwise eligible applicant's recovery, but that the effect should merely be to reduce recovery based on the ratio of eligible parties to total parties, in Sierra Club eleven to twelve.
In the case at hand, PEPA was joined by three EAJA non-eligible parties, the County of Westchester, the Town of Harrison, and in the latter part of the litigation, the City of New York. Thus, even on a straightforward transposition of the majority's holding in Sierra Club, PEPA would only be entitled to 1/4 of its costs. However, the particular circumstances of PEPA's application make even such a recovery unjust.
The purpose of the EAJA is to ensure that unreasonable government action does not go unchallenged simply because of the cost of litigation. In addition, "the EAJA, as a waiver of sovereign immunity, must be strictly construed and not enlarged beyond what a fair reading of the language requires." Sierra Club, 776 F.2d at 394 (Meskill, J. dissenting) (citing Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 77 L. Ed. 2d 938, 103 S. Ct. 3274 (1983)). Here, the Postal Service's actions were challenged by the City of New York, the County of Westchester and the Town of Harrison in addition to PEPA and, regardless of PEPA's activities, the other parties vigorously pressed their challenge to the Postal Service's action. These special circumstances, in combination with the determination that the Postal Service's position was substantially justified in all respects except as to the wetlands issue, dictate a denial of PEPA's application.
The motion is denied.
It is so ordered.
Dated: December 7, 1992
New York, New York
Morris E. Lasker