concurring in part and dissenting in part:
I concur in the result reached in Part I of the court’s opinion. Under statutory provisions such as these, a losing party seeking attorneys’ fees bears the burden of showing that it has brought an “exceptional” case.1 These actions fail to meet that test. Not only did appellees lose on every point they raised, but the adjudication of the litigation they initiated added little new to the law.
Most of the basic legal issues had been decided by this and other courts before these actions were ever instituted.2 To be *50sure, these issues acquired a slightly different cast here because different statutes were involved than those which had been the subject of earlier litigation. But that altered statutory context was ultimately irrelevant: notwithstanding the change in the underlying statutes, the rules of law which were found to be controlling turned out to be the same rules which governed the earlier cases. Any remaining doubt on that score was dissipated when the Court of Appeals for the First Circuit, one month after the filing of the complaint here, and long before the bulk of the attorneys’ fees had been expended, resolved most of the questions here involved in the context of the very statutes at issue in these eases.3 Appellees certainly had a right to continue to maintain their litigation in this Circuit notwithstanding all the precedents against them; but they have no right to receive attorneys’ fees for their efforts.
These considerations are dispositive of appellees’ claim, and it is therefore not necessary to reach the further question of the extent to which the two statutes protect various goals. Clearly, economic as well as environmental concerns are implicated in both the Outer Continental Shelf Lands Act and the Endangered Species Act;4 I see no need for deciding the difficult question5 of how much a particular statutory objective sought by a plaintiff must predominate over other purposes of the same law in order to entitle him to attorneys’ fees, when such a decision is not necessary to the outcome.6
In Part II of the opinion the court concludes that the attorneys’ fee stipulation entered into by the parties is of no effect and that appellees are not entitled to enforce it. I believe that this conclusion is based upon an erroneous interpretation of the record and that it allows the government excessive freedom to repudiate binding agreements in future cases.
The district court properly characterized this fee litigation as having a “sordid history.” The parties began to negotiate in August, 1980, and on November 19, 1980, the government made a firm settlement proposal. Further negotiations ensued, and on January 19, 1981, the acting Assistant Attorney General approved a settlement worked out between counsel for the two sides. Two days later, the government filed the settlement papers with the court in the form of a stipulation.7 On January 30, 1981, without any further contact between the parties, the government notified the court that it would not honor its agreement, stating as a basis only that the Department of Justice had previously failed to consult with the Department of the Interior and that Interior now interposed an objection.
*51There is no question that a settlement agreement is a contract which, like any other contract, may not be unilaterally rescinded. Autera v. Robinson, 419 F.2d 1197, 1201 n.17 (D.C.Cir.1969). See also Dacanay v. Mendoza, 573 F.2d 1075, 1079 (9th Cir. 1978). That principle applies to the government as to any other party,8 and it applies irrespective of whether or not the agreement has yet been approved by the court.9 Thus, unless there is some reason why this general rule should be held inapplicable to these particular facts, appellees are entitled to enforce the agreement.
It has been suggested that the government’s obligation may be voided, first, because the Department of Justice lacked authority to enter into the settlement, and second, because appellees consented to the government’s rescission of the agreement.
The Justice Department’s suggestion, implicit in its January 30, 1981, notification, that absent Interior Department concurrence it was without legal authority to enter into the settlement agreement, is patently without merit.
Executive Order No. 6166 states that with respect to any case referred to the Department of Justice “the function of decision whether and in what manner to prosecute, or to defend, or to compromise ... is transferred to [that] Department.” Executive Order 6166, § 5 (June 10, 1933). The Executive Order has been interpreted in two Opinions of the Attorney General as vesting in the Department plenary power to settle or to compromise any case on such terms as the Attorney General sees fit. 38 Op.Att.Gen. 98 (1934); 38 Op.Att.Gen. 124 (1934). Thus, “there resides in [another department] no discretion to review on the merits the action of the Attorney General in accepting an offer in compromise.” 38 Op.Att.Gen. at 127. Indeed, the Department of Justice’s own regulations authorize the Assistant Attorney General in charge of each division to accept offers in compromise of $750,000 or less even when the agency involved is opposed to the proposed compromise. See 28 C.F.R. §§ 0.160, 0.164 (1981).
Court decisions have confirmed these unambiguous directives. In United States v. McInnes, supra, 556 F.2d at 441, the court stated:
We find clear authorization in 28 CFR § 0.160 for the Assistant Attorney General to compromise and settle the appellees’ claims against the United States .... If the Navy objected to the settlement, as the government suggests, then that was for the Assistant Attorney General to consider.
See also Halbach v. Markham, 106 F.Supp. 475, 480 (D.N.J.1952), aff’d, 207 F.2d 503 (3d Cir. 1953), cert. denied, 347 U.S. 933, 74 S.Ct. 628, 98 L.Ed. 1084 (1954); United States v. Sandstrom, 22 F.Supp. 190 (N.D.Okla.1938); 28 U.S.C. §§ 516, 519; 28 C.F.R. § 0.65(a)(1).10
In view of the plain mandate of these authorities, it is difficult to imagine that the government could have believed11 that there never was a settlement agreement12 or that, if there was an agreement, it was invalid for lack of Interior Department13 *52concurrence.14 In any event, it does not appear that the majority is persuaded by that contention, whatever its formulation,15 and, as indicated, neither am I.
That leaves, then, the contention, adopted by the majority, that if the government rescinded, it did so with appellees’ consent, and that there is therefore no longer any agreement to enforce.
I do not find such a consent in the record. As indicated, the government improperly claimed the authority on January 30, 1981, to withdraw from its settlement agreement. Appellees immediately urged the district court not to permit the withdrawal. The court disregarded appellees’ protestations, awarding them attorneys’ fees based not on the agreement but on the merits of their claim. At the same time, the amount awarded was identical to that provided for in the agreement. In my view, these rulings were in error.16
Absent statutory provision or other special circumstances, a court is bound to enforce a settlement that is not unjust. See, e.g., United States v. McInnes, supra; United States v. City of Miami, 614 F.2d 1322, 1330 (5th Cir. 1980). The district court here obviously did not believe that the settlement was unjust or otherwise not in the public interest, for it awarded attorneys’ fees to appellees in the precise amount called for by that settlement. Under the law, it should therefore simply have enforced the agreement. Instead, as noted, it proceeded to award attorneys’ fees on a merit basis; but the method chosen to accomplish this task further complicated the problem. Rather than to compute the amount of the fees in accordance with the formula established by the cases,17 the court tracked the terms of the stipulation. As will be seen, these actions provided the government with an opportunity and they presented appellees with a dilemma.
After the order was entered, the government moved the court for a stay to allow consideration of an appeal. It was in response to that motion that appellees, for the first time, even as much as mentioned the alternative that the court might determine the amount of the attorneys’ fees outside the framework of the stipulation.18 But at *53that time, too, they stated, again and again, that they were requesting enforcement of the stipulation, arguing, just as they do here, that a stipulation is a contract, binding on the parties irrespective of the relationship between the Departments of Justice and Interior, and enforceable as such. Only if the government persisted in its failure to abide by the agreement, and only if the court did not enforce the agreement, then, according to appellees, attorneys’ fees were to be awarded under the Copeland standard.
I cannot interpret that position as supporting the conclusion that the merits of the attorneys’ fee issue were tried “at the instance of both parties.” Majority Opinion at 16. The government had already reneged on the agreement, and the court had already decided to try the merits of the attorneys’ fee issue. In that posture, and as a fallback position in case they were unable to change the court’s mind, appellees suggested that if the merits be tried, it at least be done in accordance with the governing legal principles. See supra. To construe that suggestion as a joint enterprise by the parties to abandon the stipulation is in my view not only an unrealistic interpretation of the record but it would also unnecessarily reward the government for its breach.19
Appellees were effectively forced into the position they took by the actions of the government and the court. The district court’s order of February 3 purported to award attorneys’ fees on the basis of the merits when, in fact, there was no basis for an award on that theory in the amount provided for by the court. The court’s decision was thus highly vulnerable to reversal on appeal. What appellees did to avoid what, from their point of view, was the calamity of a certain reversal and at best further delay was to ask the court to clarify its February 3 decision — either to award attorneys’ fees based on the settlement or if, notwithstanding appellees’ request, it was unwilling to do so, to award attorneys’ fees based on the merits of their fee claim. That is a far cry from a rescission of the settlement agreement.
On February 3, 1981, by the majority’s own reasoning, there was a binding agreement which the court had no basis for refusing to enforce.20 I would accordingly direct the district court to do that which it should have done on that date — to enforce the agreement. Alternatively, it might be appropriate to remand the cases for a determination by the district court of the question whether appellees actually did intend21 to rescind the agreement in their February 13, 1981, filing.22 But I do not see how *54appellees can, on this record, be denied not only an enforcement of the agreement of January 19, 1981, but even as much as the opportunity to show that they did not intend to rescind.
The present situation was brought about by the government’s improper actions and the district court’s error. Appellees bear no responsibility for either; yet the disposition reached by the court would penalize only them. For the reasons stated, I respectfully dissent.
. Sierra Club v. Gorsuch, 672 F.2d 33, 39 (D.C.Cir.1982). See also, Alabama Power Co. v. Gorsuch, 672 F.2d 1 (D.C.Cir.1982); Environmental Defense Fund v. EPA, 672 F.2d 42 (D.C.Cir.1982).
. See Alaska v. Andrus, 580 F.2d 465 (D.C.Cir.), vacated in part as moot, 439 U.S. 922, 99 S.Ct. 303, 58 L.Ed.2d 315 (1978); County of Suffolk v. Secretary of the Interior, 562 F.2d 1368 (2d Cir.1977); Sierra Club v. Morton, 510 F.2d 813 (5th Cir. 1975).
. Massachusetts v. Andrus, 594 F.2d 872 (1st Cir. 1979), on remand, 481 F.Supp. 685 (D.Mass.1979), motion for injunction pending appeal denied sub nom. Conservation Law Foundation v. Andrus, 617 F.2d 296 (1st Cir. 1979), denial of motion for preliminary injunction aff’d, 623 F.2d 712 (1st Cir. 1979).
. Environmental protection is the sole objective of the Endangered Species Act (16 U.S.C. § 1531(b)) and it is also an objective—albeit not the dominant purpose—of the Outer Continental Shelf Lands Act (43 U.S.C. § 1344(a)(3)).
. An additional controversial issue is implicated by the majority’s conclusion that it is appropriate to consider that the litigation caused a delay in the development of certain energy resources. Majority opinion at 8-9. It is dubious that the denial of attorneys’ fees may rest, in whole or in part, on the mere fact that a party is engaged in litigation. See, e.g., Calvert Cliffs’ Coordinating Committee, Inc. v. AEC, 449 F.2d 1109, 1128 (D.C.Cir.1971); Greene County Planning Board v. FPC, 455 F.2d 412, 422 (2nd Cir.), cert. denied, 409 U.S. 849, 93 S.Ct. 56, 34 L.Ed.2d 90 (1972). Further, it could well be argued that, if a lawsuit is patently without merit, any delay problems may be cured by the courts themselves (e.g., by summary disposition, denial of a stay). If, on the other hand, the lawsuit appears to have merit, the delay attributable to an appropriate disposition should not be held against the plaintiff. In any event, this is an issue which is best left for decision in a case where, unlike here, it is critical to the outcome.
. Since appellees’ lawsuits do not raise important new issues, the statutory goals do not matter: appellees would not be entitled to attorneys’ fees even if those goals were entirely in the environmental area.
. A proposed order was filed at the same time.
. United States v. McInnes, 556 F.2d 436, 441 (9th Cir. 1977).
. See, e.g., Green v. John H. Lewis & Co., 436 F.2d 389, 390 (3d Cir. 1970); Hannon v. Hannon, 426 F.2d 771, 772 (4th Cir. 1970); Autera v. Robinson, supra, 419 F.2d at 1200.
. The funds expended pursuant to the settlement agreement would be drawn from Department of Justice appropriations, not those of the Department of the Interior. 31 U.S.C. § 724a.
. In view of the fact that the Department of Justice, day in and day out, defends other agencies and settles claims against the government involving them, it is incredible that the Department would not have known that under the law it has the authority to do so without agency consent.
. Even in this court, the government persists in claiming that settlement efforts “collapsed” or were “aborted” (Opening Brief at 12, 65). That is simply untrue. As explained above, and as the district court found, there was an agreement but the government “unconscionably reneged on” and “willful[ly] breach[ed]” that contract. J.A. 26, 30.
. The Department of Justice has consistently referred to the Department of the Interior as its “client,” see, e.g., Reply Brief at 4-5, apparent*52ly in an effort to buttress its claim that Interior approval was required to give vitality to the settlement. The Justice Department’s client is the United States.
.On appeal, the government has made the argument that it disavowed the settlement agreement not because the Assistant Attorney General lacked authority to bind the government but because he allegedly was mistaken in his belief that the Interior Department had been consulted and had concurred. Opening Brief at 11-12, 24-26. That point is equally untenable. Under elementary principles of contract law, a unilateral mistake of fact does not under these circumstances render an agreement invalid or unenforceable. See, e.g., Lee v. Hunt, 631 F.2d 1171, 1177-78 (5th Cir. 1980), cert. denied, 454 U.S. 834, 102 S.Ct. 133, 70 L.Ed.2d 112 (1981); Restatement (Second) of Contracts § 153.
This argument is also inconsistent with the government’s theory on appeal that settlement negotiations aborted or collapsed. See note 12 supra. The concept of a collapse of the negotiations implies that appellees somehow contributed to the outcome before they ever bore fruit. It is not clear on what theory that responsibility can be attributed to appellees when, allegedly, the Department of Justice itself did not know at the time it entered into the stipulation that the Interior Department did, would, or might disapprove of a settlement of the attorneys’ fees issue. It might also be noted that if the government’s argument were accepted, settlements involving the interests of departments or agencies other than the Department of Justice would probably hereafter need to be countersigned by counsel for such agencies to protect those dealing with the government in good faith.
. The court would not have had to consider the rescission issue had it been convinced that, absent Interior Department concurrence, there never was an agreement.
. The court was, of course, led into these actions by the government’s unjustified disavowal of its contract. But for that disavowal, none of the problems facing either the district court or this court would have arisen.
. Copeland v. Marshall, 641 F.2d 880 (D.C.Cir.1980), and its progeny.
. The court eventually chose to make a new determination of the attorneys’ fees, awarding to appellees an amount considerably in excess of what had previously been awarded. That award is being set aside by today’s decision.
. It is not clear what else appellees might have done. They probably could not have appealed from the court’s decision since the amount of their recovery was equal to that which was stipulated under the settlement. All they could have done therefore — other than what they did — was to await the government’s appeal and a likely reversal, at which time there might well have been a new round of litigation. Whether or not that might have been appropriate as a matter of law, the alternative course appellees chose can hardly be regarded as acquiescence in a rescission or as a joint effort with the government to set aside the settlement.
. Except for the collateral matters discussed in note 22 infra.
. The issue whether a party intended to rescind a contract is one of fact, 12 Williston on Contracts § 1469 (1970), and thus appropriate for the district court.
.No other rule of law requires a different result. Thus, there is in my view no merit to the government’s claim that the district court lacks jurisdiction to adjudicate this question. It has frequently been held that courts have inherent authority to enforce settlement agreements. Autera v. Robinson, supra, 419 F.2d at 1200. See also Dacanay v. Mendoza, supra, 573 F.2d at 1078; Wood v. Virginia Hauling Co., 528 F.2d 423, 425 (4th Cir. 1975); Kukla v. National Distillers Products Co., 483 F.2d 619 (6th Cir. 1973). The Tucker Act, 28 U.S.C. § 1346, does not limit this authority. Cf. Aro Corp. v. Allied Witan Co., 531 F.2d 1368, 1371-72 (6th Cir.), cert. denied, 429 U.S. 862, 97 S.Ct. 165, 50 L.Ed.2d 140 (1976). Similarly, there is in my view no validity to the majority’s apparent suggestion that it may be that the settlement agreement could not be enforced even if it is a binding contract. Maj. Op. at p. 231 n.76. The general rule, previously espoused by this court, is that “the actual merits of the settled controversy are without consequence” in assessing a settlement agreement. Autera v. *54Robinson, supra, 419 F.2d at 1201 n.17. The majority’s approach would permit the government to renege on any settlement agreement whenever it concluded that it could achieve a more favorable result through litigating the merits of the dispute.