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TONGOL v. DONOVAN

No. 83-2432.

762 F.2d 727 (1985)

Reynaldo TONGOL and Hosea Perkins L., on behalf of themselves and all others similarly situated, Plaintiffs-Appellees, v. Raymond DONOVAN, in his capacity as Secretary of the U.S. Dept. of Labor; Kay Rex Kiddoo in her capacity as Director, California Employment Development Department; California Unemployment Insurance Appeals Board; California Employment Development Department, Defendants-Appellants.

United States Court of Appeals, Ninth Circuit.

Decided April 1, 1985.

Attorney(s) appearing for the Case

Richard M. Pearl, Pearl, McNeill, Gillespie & Standish, Oakland, Cal., for plaintiffs-appellees.

Wendy M. Keats, Dept. of Justice, Washington, D.C., for defendants-appellants.

Before WALLACE, KENNEDY, and FLETCHER, Circuit Judges.

WALLACE, Circuit Judge:

The Secretary of Labor (the Secretary) appeals an award of attorneys' fees against him pursuant to the Equal Access to Justice Act (the Act), 28 U.S.C. § 2412, on the grounds that the case was not pending as to him when the Act took effect, that he is immune from 42 U.S.C. § 1983 when functioning in his official capacity and thus from any liability under the Act in this case dependent on section 1983, that his legal position was substantially...

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