Joe v. U.S.

• Decision Date: 07 October 1985
• Docket Number: No. 85-5240,85-5240
• Citation: 772 F.2d 1535
• Parties: Shirley C. JOE, as Personal Representative of the Estate of Samuel Lee Joe for the benefit of Shirley C. Joe, individually, etc., Plaintiff-Appellant, v. UNITED STATES of America, d/b/a Veterans Administration, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1535

772 F.2d 1535

Shirley C. JOE, as Personal Representative of the Estate of Samuel Lee Joe for the benefit of Shirley C. Joe individually, etc., Plaintiff-Appellant, v. UNITED STATES of America, d/b/a Veterans Administration etc., et al., Defendants-Appellees.

No. 85-5240.

United States Court of Appeals Eleventh Circuit.

Oct. 7, 1985.

Robert Peltz, Miami, Fla., for plaintiff-appellant.

Stanley Marcus, U.S. Atty., Linda Collins-Hertz, David Leiwant, Susan Aprill, Asst. U.S. Attys., Miami, Fla., for defendants-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before JOHNSON and HENDERSON, Circuit Judges, and ALLGOOD ^*, District Judge.

PER CURIAM:

This appeal arises from a wrongful death action brought by appellant Shirley Joe, in her individual capacity and as personal representative of the estate of Sam Lee Joe. Appellant brought this action against the United States and other defendants who committed medical malpractice resulting in the death of Sam Lee Joe, Shirley Joe's husband. The action was brought under the Federal Tort Claims Act ("FTCA"), 28 U.S.C.A. Sec. 2671 et seq. The case was tried under Florida substantive tort law, as required by the FTCA. Following a non-jury trial, the district court awarded $490,707 plus costs to appellant.

In a post-trial petition, appellant sought attorneys' fees pursuant to Fla.Stat. Sec. 768.56. That statute provides for an award of attorneys' fees to the prevailing party in a medical malpractice action. The district court denied the petition for attorneys' fees. This appeal followed, and is confined solely to the issue of whether appellant is entitled to attorneys' fees from the United States in an action brought under the FTCA, where the applicable state tort law would provide for attorneys' fees in an action against another party under state law.

Appellant advances two arguments in support of her contention that she is entitled to attorneys' fees. First, appellant argues that Section 2674 of the FTCA provides that the United States shall be liable in the same manner and to the same extent as a private individual under like circumstances. The lower court was therefore bound to, and in fact did, follow the substantive law of Florida on the issues of liability and damages. Appellant further contends that attorneys' fees is one aspect of "liability" within the meaning of the FTCA. Thus, since a private individual would be liable for attorneys' fees in a medical malpractice action brought under Florida law, appellant argues that the United States should be liable for attorneys' fees under the FTCA.

Appellant's second argument is based on the Equal Access to Justice Act ("EAJA"), 28 U.S.C.A. Sec. 2412(b). The EAJA provides that the United States shall be liable for attorneys' fees to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award. Appellant claims that Fla.Stat. Sec. 768.56, which provides for attorneys' fees in medical malpractice actions, is a "statute" within the meaning of the EAJA. Since another party would be liable for attorneys' fees under the Florida Statute, appellant argues that the United States is liable for attorneys' fees as well.

I. Attorneys' Fees Directly Under the Federal Tort Claims Act

The doctrine of sovereign immunity bars an award of attorneys' fees against the United States unless there is express statutory authorization for such an award. Fenton v. Federal Insurance Administrator, 633 F.2d 1119, 1122 (5th Cir.1981); Hernandez v. Home Savings Assoc. of Dallas County, 606 F.2d 596, 602 (5th Cir.1979). Waivers of sovereign immunity are to be strictly construed in favor of the sovereign. United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941).

The FTCA does not expressly provide for attorneys' fees against the United States. The only mention of attorneys' fees within the FTCA occurs in Section 2678, which prohibits an attorney from charging fees in excess of 25 percent of the judgment. Section 2678 was amended in 1966, at which time Congress raised that limit on attorneys' fees from 20 percent to the present level of 25 percent. The legislative history of that amendment indicates that its purpose was to "assure competent representation and reasonable compensation" in matters litigated under the FTCA. S.Rep. No. 1327, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.Code Cong. & Ad.News 2515, at 2520. The increase was intended to encourage attorneys to take claims under the FTCA, and to bring attorneys' fees under that act "more nearly in line with those prevailing in private practice." Id.

If Congress had intended at the time of the 1966 amendment to encourage attorneys to bring FTCA claims not by increasing the percentage of the judgment available to attorneys but, instead, by providing for an award of attorneys' fees from the United States, Congress could easily have done so. However, the legislative history implies that Congress viewed FTCA claims as typically involving contingent fee...