O'Brien v. Moore, 04-6473.

• Decision Date: 27 January 2005
• Docket Number: No. 04-6473.,04-6473.
• Citation: 395 F.3d 499
• Parties: Joseph P. O'BRIEN, Petitioner-Appellee, and James E. Byrd; Ebony Guinn; Jaron A. Sturdivant, Petitioners, v. G.O. MOORE, Community Corrections Manager, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 499

395 F.3d 499

Joseph P. O'BRIEN, Petitioner-Appellee, and James E. Byrd; Ebony Guinn; Jaron A. Sturdivant, Petitioners, v. G.O. MOORE, Community Corrections Manager, Respondent-Appellant.

No. 04-6473.

United States Court of Appeals, Fourth Circuit.

Argued: December 1, 2004.

Decided: January 27, 2005.

ARGUED: Matthew Theodore Martens, Assistant United States Attorney, Office of the United States Attorney, Charlotte, North Carolina, for Appellant. William Chester Bunting, Jr., Shumaker, Loop & Kendrick, Charlotte, North Carolina, for Appellee. ON BRIEF: Gretchen C.F. Shappert, United States Attorney, Charlotte, North Carolina, for Appellant. Peter C. Anderson, Shumaker, Loop & Kendrick, L.L.P., Charlotte, North Carolina, for Appellee.

Before NIEMEYER and MICHAEL, Circuit Judges, and Norman K. MOON, United States District Judge for the Western District of Virginia, sitting by designation.

Reversed and vacated by published opinion. Judge NIEMEYER wrote the opinion, in which Judge MICHAEL and Judge MOON joined.

OPINION

NIEMEYER, Circuit Judge:

The question in this appeal is whether the Equal Access to Justice Act (the "EAJA"), 28 U.S.C. § 2412, contains an unequivocal expression of congressional intent to waive sovereign immunity to authorize the assessment of an award of attorneys fees against the United States in a habeas corpus proceeding. The EAJA provides that a court shall award reasonable attorneys fees to a prevailing party (other than the United States) "in any civil action (other than cases sounding in tort), including proceedings for judicial review or agency action, brought by or against the United States ... unless the court finds that the position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A) (emphasis added). Applying this provision, the district court entered an order awarding Joseph P. O'Brien $35,935 in attorneys fees incurred in connection with his successful prosecution of a petition for a writ of habeas corpus, which he filed against the Federal Bureau of Prisons under 28 U.S.C. § 2241.

Appealing the district court's order, the government contends that Congress did not waive sovereign immunity as to such an award because, in waiving sovereign immunity as to an award of attorneys fees to a prevailing party in a "civil action," Congress did not unequivocally express an intent to waive sovereign immunity as to an award of attorneys fees to a prevailing party in a habeas corpus proceeding. The government also contends that its position in this habeas corpus proceeding was "substantially justified."

Because the EAJA does not expressly authorize an award of attorneys fees to a prevailing party in a habeas corpus proceeding and because the term "civil action" does not unambiguously encompass habeas actions, we conclude that the EAJA does not contain the unequivocal expression of congressional intent necessary to amount to a waiver of sovereign immunity and thereby permit the assessment of attorneys fees against the United States in a habeas corpus proceeding. Accordingly, we reverse and vacate the district court's order without reaching the government's argument that its litigating position was "substantially justified."

I

After Joseph O'Brien pleaded guilty to bank fraud in the Eastern District of Pennsylvania, the district judge sentenced him, on February 13, 2002, to 24 months' imprisonment and recommended that, when he became eligible, O'Brien be designated to serve his sentence at the McLeod Community Corrections Center, a halfway house in Charlotte, North Carolina. Instead of sending O'Brien to prison, the Federal Bureau of Prisons designated O'Brien to serve his entire sentence at the McLeod Center.

On December 13, 2002, the Office of Legal Counsel of the United States Department of Justice rendered a "Memorandum Opinion for the Deputy Attorney General," which concluded that the Bureau of Prisons' practice of placing offenders sentenced to specified prison sentences in halfway houses at the outset of their sentence or transferring them from prisons to halfway houses at any time the Bureau of Prisons chose was unlawful under the U.S. Sentencing Guidelines and under 18 U.S.C. §§ 3621 and 3622. The opinion applied to offenders sentenced to terms of imprisonment within either Zone C of the Sentencing Guidelines' sentencing table (providing for 8 to 16 months' imprisonment) or Zone D (providing for 12 months' to life imprisonment).

Consistent with the Justice Department's position, O'Brien was notified on December 23, 2002, that he would be redesignated to serve the remainder of his sentence in a federal prison. In January 2003, he was formally redesignated to a federal prison camp, to be transferred there on or about January 27, 2003.

O'Brien and three other inmates commenced this habeas action on January 21, 2003, by filing a "Joint Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2241 by Prisoners in Federal Custody." They requested a temporary restraining order, pending a hearing on their motion for a preliminary injunction, that they not be transferred from the McLeod Center to a federal prison camp. Following oral argument, the district court issued a temporary restraining order on January 23, 2003, to expire on February 4, 2003. The court also scheduled a hearing on that date on the motion for a preliminary injunction. When O'Brien filed a motion before the scheduled hearing date to postpone the hearing until February 14, 2003, the district court, over the government's objection, extended the temporary restraining order until that date. The court also rescheduled the hearing on the motion for a preliminary injunction to take place on that same date. Shortly before the newly scheduled hearing date, when O'Brien had not yet filed his memorandum of law in support of his motion for a preliminary injunction, the district court, sua sponte, extended the temporary restraining order a second time, until March 5, 2003. In its order, the court ruled that the ten-day limit imposed by Federal Rule of Civil Procedure 65(b) did not apply because the temporary restraining order "was entered with notice."

The government moved to dissolve the second extension of the temporary restraining order, arguing that the district court was without authority to extend the temporary restraining order beyond 20 days. In support of its position, the government cited three cases and a passage from Wright & Miller's Federal Practice and Procedure, which states that "20 days ... is the longest that a temporary restraining order can be operative." 11A Charles Alan Wright, Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 2953 (2d ed.1995). In response to this motion, the court scheduled a hearing on February 20, 2003, following which it entered an order dated March 6, 2003, granting O'Brien's "motion for stay" of any redesignation or transfer (which was made and orally granted at the February 20 hearing) and his motion for a preliminary injunction.

During the February 20 hearing, the district court stated that it thought the government had misrepresented the law when arguing that there was a 20-day time limit for temporary restraining orders:

You've misrepresented the import of the cases to the Court. You've overstated it and you've done so in a way that in a civil case, if the other side moved for sanctions, I would have to seriously consider it.

* * * * * *

I think the case law is clear in the Fourth Circuit that only a temporary restraining order issued for an indeterminate period of time becomes willy-nilly a preliminary injunction.

The court then received argument from the parties on the merits of the habeas petition.

On May 20, 2003, the government mooted O'Brien's habeas petition and agreed that he would not be redesignated to a federal prison camp, but would continue to serve the remainder of his sentence, which was scheduled to expire in February 2004, at the McLeod Center. The district court confirmed the government's agreement in an order dated June 30, 2003.

Having thus prevailed on his habeas petition, O'Brien moved the district court for an award of attorneys fees and costs pursuant to the EAJA, 28 U.S.C. § 2412, arguing that the government's position in the litigation was "not substantially justified." The government opposed this motion, alleging that its position on the proper facility in which to serve a sentence of imprisonment of over 12 months was substantially justified, based on a series of successes in similar cases in other federal courts. While the district court recognized the government's other successes, it concluded that they were merely one factor that the court should consider in deciding whether to make an award under the EAJA. Noting that it was also to consider the reasonableness of the government's "stance" in the litigation, the court referred to the government's position with respect to the viability of a temporary restraining order beyond 20 days, noting:

For instance, in the hearing for the preliminary injunction in this matter, this Court considered imposing sanctions on [the government] for [its] clearly erroneous representations of the law.

The court concluded:

Therefore, in the totality of the circumstances, tak[ing] into account objective indicia of substantial justification, such as the alleged "string of successes" as well as the specific facts of the instant litigation, the Court finds that the government was not substantially justified in the position it took in this specific case. Furthermore, and in the alternative, based on the stances taken by respondents in the hearing, as well as their pleadings to this Court, the Court finds that respondent has undermined any substantial justification that might have existed.

The court then awarded O'Brien attorneys fees, costs, and expenses under the EAJA in the amount of $35,934.66.

The government filed a motion for reconsideration, raising for...