Ramon by Ramon v. Soto

• Decision Date: 06 June 1989
• Docket Number: No. 88-2690,88-2690
• Citation: 916 F.2d 1377
• Parties: 63 Ed. Law Rep. 492 Raymond RAMON, a minor, By and Through his father and next friend; Raymond RAMON, Sr.; Ruben Ventura, a minor, by and through his mother and next friend; Margaret Johnson, on behalf of themselves and all others similarly situated, Plaintiffs-Appellants, v. Pete SOTO, Area Director of Education, Phoenix Area Office, Bureau of Indian Affairs, U.S. Dept. of the Interior; John Derby, individually and in his official capacity, as Principal of Phoenix Indian High School; Charles Smith, individually and in his official capacity, as Asst. Principal of Phoenix Indian High School; Delmar Nejo, individually and in his official capacity; Gram Thomas, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1377

916 F.2d 1377

63 Ed. Law Rep. 492

Raymond RAMON, a minor, By and Through his father and next friend; Raymond RAMON, Sr.; Ruben Ventura, a minor, by and through his mother and next friend; Margaret Johnson, on behalf of themselves and all others similarly situated Plaintiffs-Appellants, v. Pete SOTO, Area Director of Education, Phoenix Area Office Bureau of Indian Affairs, U.S. Dept. of the Interior; John Derby, individually and in his official capacity, as Principal of Phoenix Indian High School; Charles Smith individually and in his official capacity, as Asst. Principal of Phoenix Indian High School; Delmar Nejo individually and in his official capacity; Gram Thomas, Defendants-Appellees.

No. 88-2690.

United States Court of Appeals, Ninth Circuit.

Submitted June 6, 1989 ^*.

Decided Nov. 15, 1989.

As Amended on Denial of Rehearing and Rehearing En Banc Oct. 2, 1990.

James Bell, Youth Law Center, San Francisco, Cal., for plaintiffs-appellants.

Robert Moeller, U.S. Dept. of the Interior, Office of Sol., Arthur Garcia, Asst. U.S. Atty., Phoenix, Ariz., for defendants-appellees.

Appeal from the United States District Court for the District of Arizona.

Before FARRIS, THOMPSON and TROTT, Circuit Judges.

ORDER

The opinion filed in this case on November 15, 1989 and published in the advance sheets at 889 F.2d 891 (previously withdrawn from publication) is ordered amended in its entirety as reflected by the Amended Opinion filed this date. With the opinion so amended, the panel has voted unanimously to deny the petition for rehearing and to reject the suggestion for rehearing en banc.

The full court has been advised of the Amended Opinion and the suggestion for rehearing this case en banc, and no judge has requested a vote on the en banc suggestion. Fed.R.App.P. 35(b).

The petition for rehearing is denied, and the suggestion for rehearing en banc is rejected.

AMENDED OPINION

TROTT, Circuit Judge:

Raymond Ramon and Ruben Ventura, Papago Indians and students at Phoenix Indian High School, appeal the district court's order denying their motion for attorneys' fees and costs under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412 (1988). We vacate the district court's decision and remand for further proceedings consistent with our opinion.

I Introduction

On April 2, 1981, Ventura and Ramon filed a class action on behalf of all present and future students at Phoenix Indian High School, an off-reservation boarding school operated by the Bureau of Indian Affairs ("BIA"), a division of the United States Department of the Interior. The defendants named in this action are Pete Soto, Area Director of Education for the BIA; John Derby, principal of Phoenix Indian High School; Charles Smith, assistant principal of Phoenix Indian High School; and two employees of Phoenix Indian High School, Delmar Nejo and Gram Thomas. The complaint states that Soto, Derby, and Smith are being sued both individually and in their official capacities.

The following events precipitated the complaint. On February 18, 1981, Ramon and Ventura were sent home after breaking into the school kitchen to make ham and cheese sandwiches. According to the complaint, the students were not informed whether they were being suspended or expelled, and were not provided with written notice of the charges against them or an opportunity for a hearing. Upon their readmittance to school, both students allegedly were harassed, intimidated, and physically abused by defendants Smith, Nejo, and Thomas. The complaint also stated that defendant Nejo handcuffed Ventura to a fence for three hours after Ventura returned late to school one evening.

The complaint charged, in essence, that such abuses typify Phoenix Indian High School's disregard for its students' procedural rights. Specifically, plaintiffs claimed that suspending or expelling students without written notice and an opportunity for a hearing violated BIA regulations governing student rights, 25 C.F.R. pt. 35 (1980) (redesignated 25 C.F.R. pt. 42 (1989)), the BIA Education Manual, and the Fifth Amendment. ¹ Based on these claims, ² Ramon and Ventura sought a declaratory judgment and preliminary and permanent injunctions prohibiting defendants from proceeding with any disciplinary actions against the plaintiff class until the procedural protections required under pertinent regulations and the Fifth Amendment had been afforded. Plaintiffs also requested general, special, and punitive damages for Ramon and Ventura based on a claim against defendants in their individual capacities under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).

Defendants moved for summary judgment on October 30, 1981, claiming, among other things, that plaintiffs should be required to exhaust administrative remedies before seeking judicial review. On March 1, 1982, the district court ordered this motion vacated, subject to reinstatement at the request of court or counsel. The district court granted plaintiffs' motion for class certification on April 11, 1983. The certified class included all students at Phoenix Indian High School. On October 31, 1983, the district court held the case in abeyance and directed plaintiffs to exhaust While pursuing their administrative appeal, plaintiffs also engaged in settlement negotiations with defendants. In an order filed May 17, 1985, the district court appointed a special master and charged him with conducting an investigation and making recommendations for settlement to the parties and the district court. On September 24, 1985, the parties reached a settlement which called for the school to develop disciplinary procedures complying with BIA regulations and the Fifth Amendment, and for the special master to monitor the situation. The agreement was approved by the special master and incorporated in a court order, dated September 27, 1985, which, pursuant to the terms of the settlement, simultaneously dismissed with prejudice the claims against defendants in their individual capacities. After three years of monitoring, the special master certified to the court that the school had been in substantial compliance with the settlement and recommended that the district court dismiss the suit. The district court adopted the special master's recommendation and dismissed the suit on April 14, 1988.

administrative procedures established by the BIA's Office of Education. Ramon and Ventura then took their case through several levels of administrative review. On May 20, 1985, an Acting Deputy Assistant Secretary for the BIA issued a final decision denying plaintiffs relief.

The settlement filed by the parties expressly reserved the issue of attorneys' fees and costs for the special master. On February 18, 1986, plaintiffs filed with the special master an application for attorneys' fees and costs under the EAJA. On April 14, 1987, the special master found that plaintiffs were entitled to attorneys' fees and costs under 28 U.S.C. Sec. 2412(d)(1)(A) and recommended that the district court make an appropriate award. He reached this conclusion on finding that, as required by the terms of the EAJA: (1) plaintiffs had sued the United States government, (2) plaintiffs were "prevailing parties," and (3) the government's position in the litigation was not "substantially justified." ³

On May 20, 1987, the government filed an objection to the special master's findings, asserting that attorneys' fees were not warranted under the EAJA because Congress had not waived sovereign immunity as to the underlying claims. On December 15, 1987, the district court denied attorneys' fees to plaintiffs, reasoning that "[b]ecause the substance of the Plaintiffs' complaint was directed against federal officials acting outside their official capacity, the Plaintiffs have not prevailed against the United States [as required by] the Equal Access to Justice Act." The court denied plaintiffs' motion for reconsideration on April 14, 1988, the same day it dismissed their suit. Plaintiffs filed a notice of appeal of the denial of attorneys' fees on April 22, 1988.

II Jurisdiction

Plaintiffs asserted below that defendants' conduct violated the Due Process Clause of the Fifth Amendment and specific procedural requirements imposed by BIA regulations. The district court thus had jurisdiction under 28 U.S.C. Sec. 1331 (1988).

Although plaintiffs had not pursued all administrative remedies available to them at the time they filed their complaint, the BIA issued a final decision denying plaintiffs relief well before the district court considered and adopted the special master's Stipulation and Settlement Agreement. Plaintiffs therefore exhausted their administrative remedies as required by the Administrative Procedure Act. See, 5 U.S.C. Sec. 704 (1988).

We have jurisdiction under 28 U.S.C. Sec. 1291 (1988).

Standard of Review

We review a denial of attorneys' fees under the EAJA for an abuse of discretion. Oregon Envtl. Council v. Kunzman,

                17 F.2d 484, 496 (9th Cir.1987).  An abuse of discretion occurs if the district court incorrectly interprets the EAJA.  See id.    Interpretation of the EAJA is a question of law subject to de novo review.  Id.
                

III Discussion

The EAJA sets forth two circumstances in which a court with jurisdiction over a civil suit against the United States has authority to grant attorneys' fees to a prevailing plaintiff. Section 2412(b) gives the court discretion to award fees when the common law or the terms of a statute specifically provide for such an award against any other party. 28 U.S.C. Sec. 2412(b). Section 2412(d)(1)(A) directs the court, except as otherwise provided by statute, to award fees to a prevailing party in a civil action against the United States when the government's position is not substantially justified, unless special circumstances would make an award of fees unjust. 28 U.S.C. Sec. 2412(d)(1)(A).

The district court correctly...