855 F.2d 668 (10th Cir. 1988), 85-2387, Adamson v. Bowen

Docket Nº:85-2387, 85-2396.
Citation:855 F.2d 668
Party Name:22 Soc.Sec.Rep.Ser. 698, Unempl.Ins.Rep. CCH 14107A Gerald K. ADAMSON, Plaintiff-Appellant/Cross-Appellee, v. Otis R. BOWEN, M.D., Secretary of Health & Human Services, Defendant- Appellee/Cross-Appellant.
Case Date:August 15, 1988
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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Page 668

855 F.2d 668 (10th Cir. 1988)

22 Soc.Sec.Rep.Ser. 698,

Unempl.Ins.Rep. CCH 14107A

Gerald K. ADAMSON, Plaintiff-Appellant/Cross-Appellee,

v.

Otis R. BOWEN, M.D., Secretary of Health & Human Services,

Defendant- Appellee/Cross-Appellant.

Nos. 85-2387, 85-2396.

United States Court of Appeals, Tenth Circuit

August 15, 1988

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Glenn Meyers, Colorado Rural Legal Services, Denver, Colo. (Daniel M. Taubman of Colorado Coalition of Legal Services Programs, Denver, Colo., and Lisa Robinow, Alamosa, Colo., with him on the briefs), for plaintiff-appellant/cross-appellee Gerald K. Adamson.

Edward R. Cohen, U.S. Dept. of Justice, Appellate Staff Civil Div. (Richard K. Willard, Asst. Atty. Gen., Robert N. Miller, U.S. Atty., and William Kanter, Atty., Appellate Staff Civil Div., Dept. of Justice, with him on the briefs), Washington, D.C., fordefendant-appellee/cross-appellant Otis R. Bowen.

Before LOGAN, BARRETT and ANDERSON, Circuit Judges.

LOGAN, Circuit Judge.

In this action, Gerald K. Adamson brought individual and class claims against the Secretary of the United States Department of Health and Human Services. The individual claim was an appeal of the Secretary's denial of Social Security disability benefits. Despite reports supporting his claim from Adamson's treating physician, the Secretary denied Adamson's claim at all levels of administrative review. Adamson appealed this denial of benefits to the federal district court for the District of Colorado, which reversed and found Adamson totally disabled. Finding the Secretary's defense of Adamson's individual appeal to be unsupported, the district court also imposed upon the Secretary sanctions under Fed.R.Civ.P. 11 of $1775.24, representing the cost of Adamson's attorney's fees in the district court action.

Adamson also sought certification of a class action, alleging that the Secretary had an illegal policy of nonacquiescence to the law of this circuit concerning the weight to be given to the reports of treating physicians. After it had ruled in Adamson's favor on his individual claims, and at the same time that it granted Adamson's Rule 11 motion, the district court declined to certify the proposed class action. 1

Both sides have appealed aspects of the district court's rulings. The Secretary asserts that (1) the Rule 11 sanctions are barred by sovereign immunity; and (2) if not barred, the sanctions were imposed for conduct not deserving reprimand. Adamson argues that (1) the issue of certification of the class is not mooted by the resolution of his individual claims; and (2) the district court improperly denied class certification.

I

The Secretary's first argument--that imposing monetary sanctions against him under Fed.R.Civ.P. 11 violates the federal government's sovereign immunity--apparently is an issue of first impression. Unless the United States has waived its sovereign immunity, the government is immune from actions for attorney's fees. Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3277-78, 77 L.Ed.2d 938 (1983). The courts have not discussed the specific issue whether the United States has waived immunity from monetary sanctions under Rule 11. Although the court in National Association of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D. Cal. 1987), acknowledged the issue, the defendant Veterans Administration there expressly declined to assert immunity as a defense. Id. at 562. Other courts, while discussing or even awarding fee sanctions against the government under Rule 11, have not discussed the question of sovereign immunity. See, e.g., Larkin v. Heckler, 584 F.Supp. 512, 513-14 (N.D.Cal.1984) (imposing attorney's fees against Secretary of Health & Human Services); Mager v. Heckler, 621 F.Supp. 1009, 1012-13 (D.Colo.1985) (declining to impose Rule 11 sanctions against United States).

The Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412 (1981), expressly waives immunity against attorney's fee awards.

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Under Sec. 2412(b) of the EAJA, the United States is liable for attorney's 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." 2 Id. (emphasis added). This section, enacted in 1980 and remaining in force to the present, 3 would appear on its face to be sufficiently broad to waive the government's immunity from fee awards pursuant to the Federal Rules of Civil Procedure, which have "the force of a federal statute." Sibbach v. Wilson & Co., 312 U.S. 1, 13, 61 S.Ct. 422, 426, 85 L.Ed. 479 (1941). See also Rumsey v. George E. Failing Co., 333 F.2d 960, 962 (10th Cir.1964).

The legislative history of Sec. 2412(b) supports this view of the EAJA waiver. Section 5 of the original EAJA, Pub. L. No. 96-481, Sec. 205, 94 Stat. 2321, 2330 (1980), expressly addresses fees awarded pursuant to the Federal Rules of Civil Procedure and demonstrates Congress' intent that the EAJA waives government immunity. That section repealed former subdivision (f) of Fed.R.Civ.P. 37, which had disallowed awards of expenses and attorney's fees against the United States for discovery abuses. In repealing subdivision (f), Congress specified that the United States is to be treated like any other litigant in awarding discovery sanctions: "This change reflects the belief that the United States should be liable for fees the same as other parties when it abuses discovery." H.R.Rep. No. 1418, 96th Cong., 2d Sess. 19, reprinted in 1980 U.S. Code Cong. & Admin. News 4953, 4984, 4998 [hereinafter "House Report "]. We believe that Congress through Sec. 5 manifested its broader intent that the United States be subject to fee sanctions under all of the federal rules to the same extent as private parties: Because old Rule 37(f) contained the only specific bar to such sanctions to be found in the Federal Rules of Civil Procedure, it was the only rule the EAJA needed to address specifically.

We recognize that courts must construe waivers of sovereign immunity strictly. Lehman v. Nakshian, 453 U.S. 156, 160-61, 101 S.Ct. 2698, 2701-02, 69 L.Ed.2d 548 (1981); Reynolds v. United States, 643 F.2d 707, 713 (10th Cir.), cert. denied, 454 U.S. 817, 102 S.Ct. 94, 70 L.Ed.2d 85 (1981). Thus we consider whether Congress in Sec. 2412(b) waived the immunity of the United States only as to the common law and statutes that were in force in 1980, when Sec. 2412(b) was enacted. This question is significant because Rule 11, under which sanctions were imposed here, was amended and substantially liberalized after the enactment of Sec. 2412(b).

The language of Sec. 2412(b) contains no limitation to law existing at the time of enactment; the section merely states that the United States "shall be liable for such fees and expenses to the same extent that any other party would be liable under the

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common law or under the terms of any statute which specifically provides for such an award." Id. Congress, in referring simply to the "common law" and "statutes," undoubtedly understood the shifting nature of both bodies of law and intended to encompass current law and subsequent changes.

The legislative history also supports this result by showing that Congress' key focus was that government and private litigants become and remain subject to fees and expenses in a parallel manner. The House Report states, "[T]he change [encompassed in Sec. 2412(b) ] simply reflects the belief that, at a minimum, the United States should be held to the same standards in litigating as private parties. As such, it is consistent with the history of Sec. 2412, which reflects a strong movement by Congress toward placing the Federal Government and civil litigants on a completely equal footing." House Report at 9, reprinted in 1980 U.S. Code Cong. & Admin. News at 4987 (emphasis added). The Conference Report essentially repeats the language of the House Report. H.R.Rep. No. 974, 96th Cong., 2d Sess. 25, reprinted in 1980 U.S. Code Cong. & Admin. News 4953, 5003, 5014 [hereinafter "Conference Report "]. Consequently, we conclude that Sec. 2412(b) waives sovereign immunity as to Rule 11 sanctions, including attorney's fees, against the United States.

II

We next must determine whether the district court properly imposed Rule 11 sanctions here. Rule 11 requires sanctions against attorneys who file signed pleadings, motions or other papers in district court which are not well grounded in fact, are not warranted by existing law or a good faith argument for its extension, or are filed for an improper purpose. 4 Here the district court treated the Secretary's answer as a "signed pleading" and concluded that the "Secretary violated Rule 11 in pursuing this appeal without a scintilla of evidence to support her position. I find and conclude that her position is frivolous and that she should be required to pay attorneys' fees." I R. tab 12 at 2-3. The district court based this ruling on its earlier order reversing the "not disabled" decision of the Social Security Appeals Council.

As with other types of sanctions, the award of Rule 11 sanctions involves two steps. The district court first must find that a pleading violates Rule 11. This typically involves subsidiary findings, such as the current state of the law or the parties' and attorneys' behavior and motives within the context of the entire litigation, as well as a conclusion on the ultimate question whether the pleading violated Rule 11. The second step is for the district court to impose an appropriate sanction. The Secretary acknowledges that the district court's decision on the second step is reviewable by the court of appeals only under an abuse of discretion standard. See Cotner v. Hopkins, 795 F.2d 900, 903 (10th Cir.1986) (per curiam); Chevron U.S.A. Inc. v. Hand, 763 F.2d 1184, 1187 (10th Cir.1985). 5

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