EDWARD S. SMITH, Circuit Judge.
This is an application under the Equal Access to Justice Act
With respect to services rendered in connection with the board proceedings, the EAJA does not apply, but the application is granted under the Back Pay Act, and the application is remanded to the board for determination of the amount of reasonable fees (but not expenses) to be awarded.
With respect to attorney services rendered in connection with the appeal, Gavette's application under the EAJA is granted and the application is referred to the original panel of three judges who decided the merits for determination of the amount of reasonable fees and expenses to be awarded in connection with appeal.
Three issues are presented: (1) whether either the EAJA or the Back Pay Act is applicable to attorney fees and expenses incurred in proceedings before the board in this case; (2) whether the EAJA is applicable to fees and expenses incurred in the appeal to the Federal Circuit; and (3) what is the standard that must be met for an award of fees and expenses under the EAJA.
Gavette, a GS-12 revenue agent with the Internal Revenue Service (agency) for 18 years, successfully applied to be placed on the promotion roster for GS-13 positions in April 1979. Despite the fact that he had consistently received performance ratings of satisfactory or better, he was placed at the bottom of the promotion roster. Dissatisfied, he filed a grievance through his union steward. He claimed that his group manager (supervisor) had not evaluated his work fairly and he requested a reevaluation.
After this grievance was filed, tension developed between Gavette and his supervisor. Gavette then began to suffer increasingly from an emotional disturbance he had had since 1976. In August 1979 the agency determined that he should undergo a psychological fitness-for-duty examination.
When Gavette was determined to be unfit for duty, the agency notified him that it intended to file an application with the Office of Personnel Management (OPM) for his disability retirement. Gavette opposed the application, and it was rejected by OPM in April 1981 on the ground that the agency failed to document either a deficiency in service caused by a medical condition or the incompatibility of Gavette's medical condition with useful service in his position.
In June 1981 the agency filed a request for reconsideration of the OPM decision, in which it set forth contentions to the effect that Gavette's performance in 1979 demonstrated that his emotional problems rendered him unfit for service. The agency attached a number of memoranda written by Gavette's supervisor in support of the request. On reconsideration, OPM granted the request for disability retirement in February 1982.
Also in June 1981, Gavette requested that the agency furnish him copies of its request for reconsideration and attached documents. The agency refused, citing provisions of the Freedom of Information Act and of the Privacy Act applicable to interagency memoranda and documents prepared in anticipation of litigation. It was not until March 1982, after OPM granted the application for disability retirement, that the agency furnished Gavette with the documents he had requested.
On appeal to this court, the board's decision was reversed.
On March 4, 1985, Gavette filed an application with this court for fees and other expenses under the Equal Access to Justice Act.
The party seeking an award under the EAJA must submit the application to the court within 30 days of the date when the judgment becomes "final and not appealable."
Purpose of the EAJA
Generally, there are four situations to which the EAJA applies. Section 2412(b) of 28 U.S.C. extends the common law and statutes which made private parties liable for fees and expenses, so that the United States is liable to the same extent that the private party would be liable. Section 504 of 5 U.S.C. authorizes an agency that conducts an "adversary adjudication" to award fees and expenses incurred in connection with that proceeding. Section 2412(d)(1) of 28 U.S.C. authorizes a court to award fees and expenses incurred in a "civil action," i.e., in court proceedings. Finally, section 2412(d)(3) of 28 U.S.C. authorizes a court in "any action for judicial review of an adversary adjudication" to award fees and expenses incurred in connection with the adversary adjudication.
The 1980 EAJA rested on the premise that individuals and small businesses "may be deterred from seeking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights."
Prior to the EAJA, under the "American rule," each party was "responsible for the payment of his own attorney fees and other expenses incurred during litigation."
The 1980 EAJA made two primary changes in the existing law in order to accomplish its purpose.
The House Committee on the Judiciary stated:
Second, in 5 U.S.C. § 504 and in 28 U.S.C. § 2412(d), the EAJA made a "significant change in the existing law regarding attorney fees by establishing a general statutory exception for an award of fees against the Government."
Section 504 of 5 U.S.C. authorizes the award of attorney fees and expenses incurred in "adversary adjudication" in administrative proceedings. "Adversary adjudication," in turn, is defined in 5 U.S.C. § 554(a). "Adversary adjudication" excludes cases involving the "tenure of an employee."
Section 2412(d)(1) of 28 U.S.C. authorizes the award of attorney fees and expenses incurred in "civil actions," i.e., in court
Thus, section 2412(d)(1) authorizes the court to award fees and expenses incurred in the court proceedings. Section 2412(d)(3) further authorizes the court, in "any action for judicial review of an adversary adjudication" to award fees and expenses incurred in administrative proceedings to the same extent authorized by 5 U.S.C. § 504.
Fees for Proceedings Before the Board
A panel of this court held in Olsen v. Department of Commerce, Census Bureau
The EAJA applies only to "civil actions" and to "adversary adjudications."
Here, 5 U.S.C. § 504 (concerning "adversary adjudication") does not apply to the board proceedings because the case does involve tenure. Also inapplicable is section 2412(d)(3) of 28 U.S.C., which authorizes courts to award attorney fees and expenses incurred in certain administrative proceedings, because the present case is not an "action for judicial review of an adversary adjudication."
We treat Gavette's request for attorney fees for proceedings before the board as a request under the Back Pay Act.
Here, Gavette was the prevailing party, even though the board originally held against Gavette, because this court reversed the board's decision and remanded with instructions to award back pay to Gavette. It is in the interest of justice that Gavette should be awarded attorney fees, because the agency should have given Gavette the information he requested, and the agency should have certified that no positions were available for reassignment.
The Government contests the reasonableness of the amount of fees requested by Gavette for the board proceedings (as well as for the appeal to this court). The present case is unlike Olsen, where the amount of fees for the board proceedings was not in dispute, and the court was able
In Keely v. Merit Systems Protection Board
Here, we remand to the board for determination of the amount of reasonable attorney fees to be reimbursed under the Back Pay Act for proceedings before the board. The Back Pay Act does not provide for an award of expenses, but only of attorney fees.
Fees for Appeal to the Federal Circuit
A. Previous Federal Circuit Cases Applying the EAJA.
As noted above, a panel of this court held in Olsen, and another panel affirmed in Austin, that the EAJA applies to appeals from the board to the Federal Circuit, because such appeals are judicial proceedings or "civil actions" under 28 U.S.C. § 2412(d)(1)(A). We reconsider the applicability of the EAJA in banc, at OPM's suggestion, and we reaffirm Olsen.
The conclusion of this court in the Olsen opinion that appeals from the board are "civil actions" under section 2412(d)(1)(A) has been reemphasized by Congress in the 1985 amendments, which amendments confirmed that a "civil actions" includes an appeal to a court from an administrative proceeding.
The parties, at the request of the court, have briefed the apparent conflict between Olsen, Hoska v. United States Department of the Army,
In Miller, the United States Court of Appeals for the Third Circuit awarded attorney fees under the EAJA for both the board proceedings and the appeal to the court. In Miller, the court was correct in applying the EAJA to the appeal, which was a "civil action."
Olsen and Austin, although not decided by this court in banc, have applied 28 U.S.C. § 2412(d)(1)(A) to appeals from the board. Although previous panel decisions have substantial persuasive authority when considered by the court in banc, the court must nevertheless reexamine the relevant statutes and the legislative history.
B. Savings Provision and Section 2412(d)(1)(A) Excepting Provision.
The Government reasserts the argument it made in Olsen and Austin that only one statute can provide for an award of attorney fees in any given case. Again, the Government contends that the "savings provision" in the EAJA mandates that the Back Pay Act is the exclusive statute for award of attorney fees.
The "savings provision" appears in the code as a note following the text of section 2412. It states:
There is also language in section 2412(d)(1)(A) ("excepting provision") which has the same effect as the savings provision, using the words "[e]xcept as otherwise specifically provided by statute." The savings provision specifically refers to section 2412(d). The savings provision was "simply intended to `re-enforce' and to `emphasize'" the section 2412(d)(1)(A) excepting provision.
In Olsen, the court considered three different acts which authorize the award of attorney fees: the Civil Service Reform Act (Reform Act), the EAJA, and the Back Pay Act. The Reform Act and the Back Pay Act have been used for some time as alternatives to authorize the award of fees in cases before the board, even to the extent that this court has held that the standard to be met for an award ("in the interest of justice") is the same under either act.
In Olsen, the Government argued that "the Reform Act `represents a comprehensive statutory scheme intended by Congress to cover federal personnel cases exclusively,' which supplants the Equal Access to Justice Act."
Olsen rejected the Government's argument, stating:
In United States v. 329.73 Acres of Land, the Fifth Circuit, in banc, held that the EAJA applies to eminent domain cases even though another statute, 42 U.S.C. § 4654, also provides for attorney fees in certain eminent domain cases.
In 329.73 Acres, the Fifth Circuit explained that the savings provision and the section 2412(d)(1)(A) excepting provision were intended only to exclude existing statutes which were more expansive than the EAJA.
The House report stated that section 2412(d)(1)(A) "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."
The Fifth Circuit found that the eminent domain statute was not the type of statute where "Congress had provided an attorneys' fee remedy `to encourage vigorous enforcement'" of the statute.
The Back Pay Act similarly provides for attorney fees in a narrower set of circumstances than those covered by the EAJA. The Back Pay Act was not intended to provide for vigorous enforcement of the statute; it authorizes an award of attorney fees only when "in the interest of justice," a more difficult standard which is discretionary
The court, however, will not dissect Gavette's application to determine whether it falls within that set of circumstances which do not meet the more difficult standard of the interest of justice, but which would meet the easier standard of substantial justification. Congress' purpose of protecting the individual from unreasonable Government litigation would be frustrated if the court were to require the employee to allege not only the applicability of the EAJA, but also the inapplicability of the Back Pay Act.
The Government asserts that the Back Pay Act would be applicable to the appeal in this case if the "interest of justice" standard is met. Gavette, however, seeks fees under the EAJA, alleging that the Government has failed to prove that it was substantially justified. Even assuming that both acts would apply to the circumstances in Gavette's case, there is no prohibition in either statute against the overlap in coverage in appeals from the board to this court. We affirm, in banc, the holding in Olsen that the EAJA applies to appeals from the board to the Federal Circuit, because such appeals are "civil actions" within the scope of 28 U.S.C. § 2412(d)(1)(A).
Standard for Fee Awards Under the EAJA
A. Section 2412(d)(1)(A) Substantial Justification Standard.
The remaining question is what standard must be met for an award of fees and expenses under 28 U.S.C. § 2412(d)(1)(A). That section provides that the court "shall" award fees and expenses unless "the position of the United States was substantially justified or that special circumstances make an award unjust."
The 1980 legislative history indicates that Congress considered and then rejected alternatives to the substantial justification standard.
Congress also rejected the discretionary standard proposed by the Department of Justice.
B. Inapplicability of Section 2412(b).
As we have noted, the EAJA allows for the award of both fees and expenses, whereas the Back Pay Act allows for the award of fees only. In Gavette's case, we consider, sua sponte, whether it would be possible to consider expenses under the EAJA standard of substantial justification, but to consider fees under the pre-existing Back Pay Act standard of the interest of justice. It could be argued that section 2412(b) allows the standard for fee awards under the Back Pay Act to be read into section 2412(d)(1)(A) of the EAJA.
Section 2412(b) includes the following sentence:
As stated previously, however, the language in section 2412(b) was intended only to expand the common law and those statutes which provided for liability of private parties for attorney fees, to place the Government in the same shoes as "any other party." Here, "any other party" means "any party other than the United States."
Thus, section 2412(b) holds the United States "liable for fees under the `bad faith,' `common fund,' and `common benefit' [common law] exceptions to the American rule."
Section 2412(b) does not refer to statutes which make the United States liable for attorney fees; it refers only to statutes which make parties other than the United States liable for fees. Thus, section 2412(b) does not refer to the Back Pay Act, because the Back Pay Act makes the United States liable for fees, rather than making "any other party" liable for fees. It would require a strained and logically impossible construction to find that the United States is a party "other than the United States" for purposes of section 2412(b), and then to read that oblique interpretation into section 2412(d)(1)(A), particularly in view of the "substantial justification" standard expressly stated in section 2412(d)(1)(A).
Congress has mandated that applications for fees and expenses under section 2412(d)(1)(A) must be considered under the substantial justification standard specified therein.
When an employee such as Gavette has prevailed in this court and has submitted a proper application for fees under section 2412(d)(1)(A), the court "shall award" reasonable fees and expenses "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust."
C. Meaning of "Substantial Justification."
"Substantial justification" is not defined in the 1980 EAJA. The 1985 amendments, together with the legislative history, clarify the meaning of that term.
The Government contends that the 1985 amendments are not applicable to Gavette's case, because only the issue of attorney fees was pending on the date of the amendments. The amendments, however, provide for their applicability to pending cases without distinction,
The amendments require changes in the Federal Circuit's interpretation of substantial justification in two respects. First, it is now clear that the position of the United States includes the position taken by the agency at the administrative level.
Second, it is clear that substantial justification is not simply equivalent to reasonableness.
On the other hand, it is also clear that the EAJA was not intended to be an automatic fee-shifting device in cases where the petitioner prevails before the Federal Circuit.
We hold that "substantial justification" requires that the Government show that it was clearly reasonable in asserting its position, including its position at the agency level, in view of the law and the facts.
The facts of record here are more than adequate for this court to determine
The Government also has failed to show special circumstances that would make an award of fees unjust.
Since Gavette has shown that he was the prevailing party, and the Government has failed to show that it was substantially justified or that special circumstances exist, Gavette is entitled to reasonable attorney fees and expenses for the appeal to this court, including fees and expenses for preparing the application under the EAJA.
The 1985 amendments to the EAJA state:
Thus, upon final judgment, payment under the EAJA is to be made by the agency.
Federal Circuit Rule 20
The Federal Circuit is in a better position than the board to determine the amount of fees and expenses to be awarded in connection with the appeal to this court, although the board should determine the amount of fees to be awarded in connection with the board proceedings.
With respect to the board proceedings, neither fees nor expenses can be awarded under the EAJA. Gavette's application for attorney fees for the board proceedings is granted under the Back Pay Act but expenses cannot be awarded under that act. The application is remanded to the board for determination of the amount of reasonable fees (but not expenses) to be awarded in connection with the board proceedings.
With respect to attorney services rendered in connection with the appeal to this court, Gavette's application is granted under the EAJA. The application is referred to the original panel of three judges who decided the appeal on the merits for determination of the amount to be awarded in connection with appeal.
BISSELL, Circuit Judge, with whom MARKEY, Chief Judge, and NIES and ARCHER, Circuit Judges, join, dissenting-in-part.
I agree that Gavette's request for attorney fees — but not expenses — should be granted. However, I would find that the sole statutory basis for a fee award incurred in a judicial appeal, when as a result of the appeal a petitioner is entitled to an award of back pay, is the Back Pay Act, 5
With respect to attorney expenses, as the Back Pay Act makes no provision for an award, I would hold that this court may not award such expenses in connection with the appeal.
Finally, I would remand for the Board to determine the amount of the award with respect to work before the Board.
I depart from the majority's position that Gavette has, in effect, an option to seek attorney fees for the appeal either under the Back Pay Act or under the EAJA's catch-all provision, 28 U.S.C. § 2412(d)(1)(A).
5 U.S.C. § 5596 (1980) provides:
The Office of Personnel Management (OPM) in promulgating its regulations pursuant to 5 U.S.C. § 5596(c) provided that a request for attorney fees "may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action." 5 C.F.R. § 550.806(a) (1985). (emphasis added). Under 5 C.F.R. § 550.803 "`[a]ppropriate authority' means an entity having authority in the case at hand to direct or direct the correction of an unjustified or unwarranted personnel action, including (a) a court...." [Emphasis added]. This definition of "the appropriate authority" follows our predecessor court's holding in Ainsworth v. United States, 399 F.2d 176, 181 (Ct.Cl.1968) that, under an earlier version of the Back Pay Act "[a] `proper authority' includes `a court authorized to direct the correction of' an unwarranted separation (i.e., a district court) and, also, a court `authorized ... to correct' improper personnel actions (i.e., the Court of Claims)."
After passage of the Civil Service Reform Act of 1978, the court stated that in a review of a decision of the Board, the court lacked jurisdiction to render a money judgment — a Tucker Act remedy. Brewer v. United States Postal Service, 647 F.2d 1093, 1098 (Ct.Cl.1981). However, the court did note that it would have the power under 5 U.S.C. § 7703(c) to remand with instructions to award the employee back pay and to reinstate him to his former position. Id. at 1099. That is to say, the court, under the Civil Service Reform Act
At this point it is necessary to set forth the specific language of the EAJA, 28 U.S.C. § 2412, which, in pertinent part, reads as follows:
Referring to § 2412(d)(1)(A), the House Report on the EAJA states:
H.R.Rep. No. 1418, 96 Cong., 2d Sess., 18 (1980), U.S.Code Cong. & Admin.News 1980, pp. 4984, 4997; see also S.Rep. No. 253, 96 Cong., 1st Sess., 3-6, 19-22 (1980).
In view of the preamble to § 2412(d)(1)(A) and the uncodified § 206 set forth in the note to § 2412, as well as the legislative history, I conclude that Congress did not intend for the EAJA to provide a supplemental basis for the assessment of attorney fees in back pay cases. If there is an alternative applicable fee award statute to the EAJA, the alternative must be utilized. Read as a whole, that is the import of the EAJA. The Back Pay Act is such a statute. Failure to utilize the Back Pay Act would be contrary to § 206, which specifically provides, "Nothing in § 2412(d) ... alters, modifies, repeals, invalidates or supersedes any other provision of Federal law which authorizes an award of such fees." Thus, the EAJA and its standard for determining liability set forth in § 2412(d)(1)(A) must be held inapplicable in this case since it would supersede the provisions of the Back Pay Act.
Amicus the National Treasury Employee's Union argues that the preamble of § 2412(d)(1)(A) (i.e., the phrase "Except as otherwise specifically provided by statute") was inserted only "to allay the fears of civil rights groups and others that the EAJA would lessen the fee remedies already provided for under existing, more liberal, statutes." [Emphasis added.] In
Since attorneys' expenses are not recoverable under the Back Pay Act and since I would hold that the Back Pay Act is the sole statutory basis applicable in this case, I would not award expenses.
Having determined that it is in the "interest of justice" because of the agency's action, attorney fees for the judicial appeal and the proceedings before the Board should be awarded under the Back Pay Act to petitioner Gavette. I, too, would refer his application to the original panel of three judges who decided the appeal on the merits for determination of the amount of reasonable fees (but not expenses) to be awarded in connection with the appeal.
As to the amount of reasonable attorney's fees (but not expenses) for the Board proceedings, I would remand Gavette's application to the Board for a determination thereof.
NIES, Circuit Judge, dissenting-in-part.
I join in Judge Bissell's opinion except for Part II. I would award expenses to Gavette as well as attorney fees. The EAJA provides in 28 U.S.C. § 2412(b) that "a court may award reasonable ... expenses of attorneys unless expressly prohibited by statute." The Back Pay Act does not expressly prohibit the award of such expenses. Thus, I would hold that expenses of Gavette's attorneys are also available in this case.
Thus, the in banc Fifth Circuit, the Ninth Circuit, the D.C. Circuit, and the Third Circuit have rejected the Government's contentions that the EAJA is inapplicable when another statute provides for attorney fees in the same or related situations.
The House report, however, confirmed the applicability of the EAJA to appeals from the Claims Court. H.R. REP. NO. 120 at 17-18, 1985 U.S.CODE CONG. & AD.NEWS at 146. In reviewing Federal Circuit cases up to 1985, the House Committee's only disapproval was that the Federal Circuit applied a standard which was too difficult for the party seeking attorney fees to meet. See H.R.REP. NO. 120 at 9 nn. 14 & 16, 12 n. 21, 18 n. 25, 1985 U.S.CODE CONG. & AD.NEWS at 137 n. 14, 138 n. 16, 140 n. 21, 146 n. 25.