Bennett v. Department of Navy

• Decision Date: 04 February 1983
• Docket Number: No. 16-82,16-82
• Citation: 699 F.2d 1140
• Parties: Brenda BENNETT, Petitioner, v. DEPARTMENT OF the NAVY, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1140

699 F.2d 1140

Brenda BENNETT, Petitioner, v. DEPARTMENT OF the NAVY, Respondent.

Appeal No. 16-82.

United States Court of Appeals Federal Circuit.

Feb. 4, 1983.

Peter B. Broida, Washington, D.C., argued for petitioner. With him on the briefs was Passman & Broida, Washington, D.C.

Sara V. Greenberg, Washington, D.C., argued for respondent. With her on the brief were Asst. Atty. Gen. J. Paul McGrath, Washington, D.C., David M. Cohen, New York City, Sandra P. Spooner, Washington, D.C., and Eunice W. Andrews.

Before RICH, KASHIWA and BENNETT, Circuit Judges.

BENNETT, Circuit Judge.

Petitioner appeals from a decision of the Merit Systems Protection Board (MSPB). See 5 U.S.C. Secs. 7701, 7703 (Supp.V 1981), amended by the Federal Courts Improvement Act of 1982, Pub.L. No. 97-164, tit. I, Sec. 144, 96 Stat. 25, 38, 45. The issue on appeal is the proper scope of the attorney fee provision of 5 U.S.C. Sec. 7701(g)(1). In the proceeding below, the MSPB held, in effect, that the concept of attorney fees encompassed the attorney's hourly rate plus his out-of-pocket expenses for toll telephone charges, photocopying, postage, and local transportation, but did not cover amounts expended for deposition costs and witness fees. We affirm.

The essential facts are not in dispute. The money claimed is not great but the issues are of first impression under the Civil Service Reform Act of 1978, Pub.L. No. 95-454, 92 Stat. 1111. On March 8, 1981, the Naval Surface Weapons Center, Department of the Navy, denied petitioner a within-grade increase, and on March 22, 1981, she was removed from her position as a Navy Contracts Negotiator for unsatisfactory work performance. Petitioner timely appealed to the MSPB. After a hearing, the Washington Regional Office of the MSPB reversed the discharge. The appeal of the within-grade increase issue was dismissed for lack of jurisdiction, since the Navy had cancelled its denial of the increase before the final opinion of the MSPB was issued. See Decision No. DC531D8110482 (July 29, 1981). A petition for review was denied on March 5, 1982. Petitioner was, therefore, retroactively restored to her position with the within-grade increase and back pay. After the MSPB's decision became final, petitioner's counsel filed a petition for attorney fees pursuant to 5 U.S.C. Sec. 7701(g)(1). ¹ This section authorizes the MSPB to award attorney fees, to be paid by an agency, when (1) the fees have been incurred, (2) the employee was the prevailing party, (3) the award is warranted in the interest of justice, and (4) the fees are reasonable. Finding that these statutory requirements were met for the discharge appeal, the MSPB awarded petitioner $7,103.20, which consisted of $6,987.50 for counsel's time (107.5 hours at $65 per hour), and $115.70 for counsel's expenses for telephone toll charges, photocopying, postage, and local transportation. The MSPB, however, disallowed $682.19 in deposition costs and $35 in witness fees. The MSPB reasoned that these amounts were paid to persons other than petitioner's counsel and, therefore, could not properly be considered attorney fees.

The MSPB failed to consider whether attorney fees could be awarded for the time spent by counsel on the within-grade increase appeal. Respondent's brief, however, states that the parties have agreed to an amicable settlement of that portion of this action so we do not address it.

Petitioner has appealed the MSPB's decision asserting (1) that Congress intended the phrase "attorney fees" under section 7701(g)(1) to include all normal litigation expenses, and (2) that there is no rational basis for awarding some litigation expenses but not others, such as deposition costs and witness fees.

I. The Statutory Language and Legislative History of 5 U.S.C. Sec. 7701(g)(1).

Section 7701(g)(1) expressly provides that attorney fees may be awarded in certain instances. The statutory language, however, does not expressly provide that all other litigation expenses may also be awarded, as petitioner says we should read it. We view this omission to be significant. If Congress intended section 7701(g)(1) to encompass all other expenses besides attorney fees, it could easily have manifested such broad intent. It did not do so. Therefore, we will not ascribe this intent to Congress. See Nibali v. United States, 634 F.2d 494, 497 (Ct.Cl.1980) ("It ... is a long-standing rule of law that the consent of the United States to be sued will not be extended beyond its literal terms and will not be implied").

The petitioner, however, contends that the legislative history of section 7701(g)(1) supports her position. We cannot agree. The limited legislative history, which even petitioner concedes is "not a model of clarity," does evince a congressional concern with the amount of money employees might have to spend defending against nonmeritorious actions, and a congressional awareness that the costs of litigation could be as much as the attorney fees. See S.Rep. No. 969, 95th Cong., 2d Sess. 60, reprinted in 1978 U.S.Code Cong. & Ad.News 2723, 2782; and Transcript of House-Senate Conference Committee Mark-up Session on S. 2640 95th Cong., 2d Sess. 31 (September 18, 1978). But there is certainly no "persuasive showing" from the legislative history that Congress intended section 7701(g)(1) to encompass all litigation expenses rather than just the major expense of attorney fees. See Ocean Drilling & Exploration Co. v. United States, 220 Ct.Cl. 395, 600 F.2d 1343, 1347 (1979) ("the bare language of the statute is to be given its ordinary meaning 'unless overcome by a persuasive showing from the purpose or history of the legislation' "). On the contrary, the legislative history clearly shows that following a discussion of whether all "reasonable costs and expenses of litigation" should be included in the legislation, as provided in the House bill, the conferees left out any mention of them in the conference report and the bill as enacted. Nor are litigation costs named in the applicable regulations, 5 C.F.R. Secs. 550.806, 1201.37 (1982). Therefore, we hold that under section 7701(g)(1) the MSPB is authorized to award only attorney fees.

II. Concept of Attorney Fees.

The term "expenses" is generally understood to include all the expenditures made by a litigant in connection with an action. See Copper Liquor, Inc. v. Adolph Coors Co., 684 F.2d 1087, 1098 (5th Cir.1982); 10 C. WRIGHT & A. MILLER, FEDERAL PRACTICE AND PROCEDURE Sec. 2666 (1973). As noted above, we do not view the term "attorney fees" to be synonymous with "all expenses," as petitioner urges. Rather, attorney fees are but one discrete type of expense incurred by litigants. See Vecchione v. Wohlgemuth, 481 F.Supp. 776, 798-99 (E.D.Pa.1979).

The difficulty, of course, is in identifying those expenses that can fairly be categorized under the rubric of attorney fees. Numerous courts have attempted to do so under other statutory attorney fee provisions. See Copper Liquor, 684 F.2d 1087 (5 Cir.1982, Clayton Act); Northcross v. Board of Education of Memphis City Schools, 611 F.2d 624 (6th Cir.1979), cert. denied, 447 U.S. 911, 100 S.Ct. 2999, 64 L.Ed.2d 862 (1980) (Civil Rights Attorney's Fees Awards Act of 1976); Wheeler v. Durham City Board of Education, 585 F.2d 618 (4th Cir.1978) (Emergency School Aid Act of 1972); Dunten v. Kibler, 518 F.Supp. 1146 (N.D.Ga.1981) (Civil Rights Attorney's Fees Awards Act of 1976); Loewen v. Turnipseed, 505 F.Supp. 512 (N.D.Miss.1981) (Civil Rights Attorney's Fees Awards Act of 1976); Vecchione, 481 F.Supp. 776 (Civil Rights Attorney's Fees Awards Act of 1976). From reading these cases, and others, we do not perceive any well-established or consistent test for determining when expenses will qualify as attorney fees. Thus, although we respect the varied results in these decisions, we will forge our own definition of attorney fees for this case and do so in a manner that we believe is in harmony with both the common and congressional understanding of the term, and that we believe is a reasonable interpretation of the attorney fee provision in the particular statute involved here.

We begin our analysis by employing the negative definition technique to narrow our scope of inquiry. The concept of attorney fees does not comprise those expenses that are commonly known as "taxable costs." Taxable costs are set forth in 28 U.S.C. Sec. 1920 (1976 & Supp.V 1981), which reads:

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and copies of papers necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.

A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

We believe that the term "taxable costs" has an identity all its own and is not to be considered part of an award of attorney fees. See Copper Liquor, 684 F.2d at 1100-01; Northcross, 611 F.2d at 640; Vecchione, 481 F.Supp. at 799. We find further support for this proposition in the recently enacted Equal Access to Justice Act (EAJA), Pub.L. No. 96-481, tit. II, Sec. 204(a), 94 Stat. 2321, 2327-29 (codified at 28 U.S.C. Sec. 2412 (Supp.V 1981)). Under the EAJA, "costs" and "fees and other expenses" ² are expressly authorized, but under different subsections and different standards. We quote:

[A] judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action...