Brewer v. American Battle Monuments Com'n, 85-2044

• Decision Date: 25 March 1987
• Docket Number: No. 85-2044,85-2044
• Citation: 814 F.2d 1564
• Parties: Morris V. BREWER, Petitioner, v. AMERICAN BATTLE MONUMENTS COMMISSION, Respondent. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1564

814 F.2d 1564

Morris V. BREWER, Petitioner, v. AMERICAN BATTLE MONUMENTS COMMISSION, Respondent.

Appeal No. 85-2044.

United States Court of Appeals, Federal Circuit.

March 25, 1987.

Keith R. Anderson, Schwalb, Donnenfeld, Bray & Silbert, of Washington, D.C., argued, for petitioner; with him on the brief was James K. Stewart; Leodis C. Matthews and Robert J. Fiore, O'Haire, Fiore & von Maur, of the Federal Republic of Germany, of counsel.

Terrance S. Hartman, Commercial Litigation Branch, Dept. of Justice, of Washington, D.C., argued, for respondent; with him on the brief were Richard K. Willard, Acting Asst. Atty. Gen., David M. Cohen, Director and Robert A. Reutershan.

Before FRIEDMAN, Circuit Judge, BALDWIN, Senior Circuit Judge, ^* and NEWMAN, Circuit Judge.

PAULINE NEWMAN, Circuit Judge.

ORDER

Morris V. Brewer requests attorney fees and expenses incurred in connection with interim judicial review of a Merit Systems Protection Board ("Board") decision. Brewer v. American Battle Monuments Commission, 23 M.S.P.R. 554 (1984); vacated and remanded, 779 F.2d 663 (Fed.Cir.1985); modified, 31 M.S.P.R. 243 (1986). He also seeks fees and expenses incurred in connection with the fee application.

The fee petition was brought under the Equal Access to Justice Act ("EAJA"), 28 We entertain this petition under the EAJA.

                U.S.C. Sec. 2412(d).  Petitioner also referred to the Back Pay Act, 5 U.S.C. Sec. 5596(b)(1).  In Gavette v. Office of Personnel Management, 808 F.2d 1456 (Fed.Cir.1986) (in banc), affirming Olsen v. Department of Commerce, Census Bureau, 735 F.2d 558 (Fed.Cir.1984) and Austin v. Department of Commerce, 742 F.2d 1417 (Fed.Cir.1984), this court held that the EAJA does not apply to attorney fees for Board proceedings involving employee tenure, but that such appeals from the Board to this court are "civil actions" to which the EAJA applies by terms of 28 U.S.C. Sec. 2412(d)(1)(A).   Gavette, 808 F.2d at 1461-62.  As discussed in Gavette, the Back Pay Act applies to proceedings before the Board and may also be invoked in actions before this court.  Id
                

Background

The details of Mr. Brewer's litigation with the American Battle Monuments Commission ("agency") are set out in the several published opinions cited supra. In outline, Mr. Brewer appealed to the Board the agency's action demoting and transferring him. The presiding official of the Board held that the major agency charges against Mr. Brewer were unsubstantiated, sustained some lesser charges, and changed the penalty to a letter of reprimand. On the agency's appeal the full Board upheld its presiding official on the merits but nevertheless reinstated the agency's penalty of transfer and demotion, holding that the Board had no jurisdiction to review internal agency transfers, and that the demotion considered alone was within the range of penalties for the sustained charges. Brewer, 23 M.S.P.R. at 556-57.

On appeal, this court held that the demotion and transfer were a unitary penalty, vacated the Board's decision, and remanded with instructions that the Board consider the entire penalty when deciding whether its magnitude was reasonable in view of the sustained charges. Brewer, 779 F.2d at 665. On remand the Board reduced the penalty to a 15-day suspension and awarded back pay and benefits, holding that the demotion and transfer exceeded the maximum reasonable penalty for the sustained charges. Brewer, 31 M.S.P.R. at 247. No appeal was taken by either side.

Mr. Brewer filed a petition for attorney fees within thirty days after this court's decision vacating and remanding to the Board. That petition was stayed by this court pending our decision in Gavette, and was then denied without prejudice, on the basis that Mr. Brewer was not a prevailing party at that time since there was no decision on the remand. Order, July 18, 1986.

Coincidentally on July 18, 1986 the Board issued its decision on remand. The agency does not dispute that Mr. Brewer then prevailed on the merits of his cause. Mr. Brewer renewed his request for attorney fees and expenses in connection with the proceedings before this court, and advised the court that he was requesting fees directly from the Board in connection with the administrative proceedings. The agency opposes the petition.

ANALYSIS

Mr. Brewer asserts compliance with both the Back Pay Act standard of "the interest of justice" and the EAJA's requirement that the government's position not have been "substantially justified". Both acts require that the petitioner be a "prevailing party". As discussed in Gavette, 808 F.2d at 1467, the EAJA places on the government the burden of proof as to whether its position was "substantially justified", thus implementing Congress' intent to facilitate recovery under that statute. The EAJA provides that

a court shall award to a prevailing party ... fees and other expenses ... incurred by that party in any civil action ..., including proceedings for judicial review of agency action, brought by or against the United States ..., unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. Sec. 2412(d)(1)(A). The history of this legislation states Congress' intention that the EAJA not be given an "overly technical construction ... resulting in the unwarranted denial of fees." H.R.Rep. No. 99-120, 99th Cong., 1st Sess. 18 n. 26, reprinted in 1985 U.S.Code Cong. & Admin.News 132, 146 n. 26 ("1985 House Report").

The "Prevailing Party" Issue

The agency argues that Mr. Brewer was not a "prevailing party" before this court but merely the recipient of a favorable interlocutory ruling, that he did not prevail until the Board's decision on remand, and therefore that he has no statutory entitlement to attorney fees for the interim judicial appeal. The agency asserts that judicial evaluation of fee applications "from the perspective that existed at the time of their submission ... is the only logical approach for courts to follow."

In support the agency cites Gavette and Austin v. Department of Commerce, 742 F.2d 1417 (Fed.Cir.1984). However, neither of these cases is analogous to or addresses the situation now before us. In Gavette the petitioner had prevailed on the merits on appeal to this court. Gavette, 785 F.2d at 1573, 1580. Thus in Gavette the petitioner was without question a prevailing party. In Austin this court denied a petition for attorney fees for an interim appeal wherein this court remanded for further proceedings before the Board, holding that "if a party wins on a purely procedural issue which results in a remand, this has not made him a 'prevailing party' under other attorney fee provisions." Austin, 742 F.2d at 1420.

Austin followed the decision of the Supreme Court in Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980), in which the Court interpreted the phrase "prevailing party" in 42 U.S.C. Sec. 1988 ¹ to permit an interlocutory award of attorney fees only if a party had "established his entitlement to some relief on the merits of his claim." Id. at 757, 100 S.Ct. at 1989. Mr. Brewer's position when he first filed his fee petition, before the Board's decision on remand, was analogous to that in Hanrahan and Austin; it is no longer so.

Although a court may not award fees under the EAJA at the time of decision of an interim appeal that does not resolve the merits of the claim, as in Hanrahan and Austin, nothing in these cases suggests that fee awards for the interim civil action must be excluded after the party becomes a "prevailing party." 28 U.S.C. Sec. 2412(d)(1)(A). The question of entitlement under such circumstances has not previously been decided by this court, but those courts that have treated the question have interpreted the "prevailing party" requirement to hold that a litigant who is eventually successful, but who was obliged to seek interim appellate review, may recover fees incurred for these steps along the way. This result implements the legislative purpose of the EAJA

to ensure that certain individuals ... will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved in securing the vindication of their rights.

1985 House Report at 4, reprinted in 1985 U.S.Code Cong. & Admin.News at 132-33.

This court's denial of Mr. Brewer's initial fee petition was consistent with Hanrahan and Austin and with the rulings of other circuits. See, e.g., Society for Good Will to Retarded Children, Inc. v. Cuomo, 737 F.2d 1253, 1254 (2d Cir.1984), which like Hanrahan involved fees claimed under 42 U.S.C. Sec. 1988; the court stated that since "plaintiffs have not yet prevailed on the merits in any way ... an award of attorney's fees at this time would be premature", and remanded "with instructions to deny the motion for attorney's fees, without prejudice to its subsequent renewal". Similarly in McGill v. Secretary of Health & Human Services, 712 F.2d 28, 30-32 (2d Cir.1983), applying the EAJA, the Second Circuit held that since the plaintiff had not yet prevailed on the merits of a social security claim, the district court's order awarding attorney fees "at this time" was reversed.

In Dennis v. Heckler, 756 F.2d 971 (3d Cir.1985), the court held that after the applicant had prevailed on remand to the agency, fees for an interim appeal to the district court were recoverable under the EAJA. Id. at 972 n. 7. The court stated that the claimant

became a prevailing party against the United States within the meaning of the [EAJA] when, after the district court reversed an adverse decision of the Secretary of Health and Human Services and remanded for further consideration, the Social Security Administration Appeals Council ordered an award of benefits.

Id. at 971-72. In Miller v. United States, 753 F.2d 270, 273-75 (3d Cir.1985), the court granted attorney fees under the EAJA...