Cinciarelli v. Reagan

• Decision Date: 06 March 1984
• Docket Number: No. 83-1289,83-1289
• Parties: Brigadier General Roland F. CINCIARELLI, Appellant, v. The Honorable Ronald REAGAN, President of the United States, et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 801

729 F.2d 801

234 U.S.App.D.C. 315

Brigadier General Roland F. CINCIARELLI, Appellant, v. The Honorable Ronald REAGAN, President of the United States, et al.

No. 83-1289.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 2, 1983.

Decided March 6, 1984.

Appeal from the United States District Court for the District of Columbia (D.C. Civil Action No. 80-00801).

William Stoll Hemsley, Jr., Washington, D.C., with whom Frank A. S. Campbell, Washington, D.C., was on the brief, for appellant.

John Oliver Birch, Asst. U.S. Atty., Washington, D.C., with whom Stanley S. Harris, U.S. Atty., Washington, D.C., at the time the brief was filed, and Royce C. Lamberth, R. Craig Lawrence, and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellees.

Before WRIGHT and TAMM, Circuit Judges, and SWYGERT, ^* Senior Circuit Judge.

Opinion for the court filed by Circuit Judge J. SKELLY WRIGHT.

J. SKELLY WRIGHT, Circuit Judge:

In this case we review the District Court's denial of a request for attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412 (Supp. V 1981). Appellant, a brigadier general in the Marine Corps reserve, sued the Marines on the ground that his service on temporary active status under a Standard Written Agreement had been impermissibly terminated. In defense the Marine Corps claimed that it had unilateral power to terminate the agreement and that the agreement was in any event void ab initio because it violated Marine Corps regulations. At trial on the merits the District Court found the first defense sufficient and did not rule on the second. Cinciarelli v. Carter, 490 F.Supp. 302 (D.D.C.1980). A panel of this circuit reversed and remanded for consideration of the second defense. Cinciarelli v. Carter, 662 F.2d 73 (D.C.Cir.1981). Shortly thereafter the government settled with Cinciarelli for approximately $365,000. Cinciarelli then brought this suit to recover attorney fees as a prevailing party under EAJA. Section 2412(d) of EAJA permits fee awards in cases like this if the government's litigation position was not "substantially justified." 28 U.S.C. Sec. 2412(d). The District Court refused to award fees to Cinciarelli on the ground that the government's position was substantially justified. Cinciarelli v. Reagan, 556 F.Supp. 99 (D.D.C.1983). We affirm in part, reverse in part, and remand for calculation of a partial fee award.

I. BACKGROUND

The facts underlying General Cinciarelli's claim on the merits are set forth fully in this court's opinion in Cinciarelli v. Carter, supra, 662 F.2d at 74-79. We repeat here only those facts important to resolution of the claim for attorney fees.

Cinciarelli has been a reserve officer in the Marine Corps since 1953. By the late 1970's he had attained the rank of colonel and was serving on active duty pursuant to a series of Standard Written Agreements (SWAG's). The armed services grant SWAG's to reserve officers pursuant to 10 U.S.C. Secs. 679, 680 (1982). These agreements "provide for definitive terms of active duty and ensure that the Reservist will not be released involuntarily except according to specified procedures, including a hearing before a board of officers." Cinciarelli v. Carter, supra, 662 F.2d at 75. The statutory protections accrue "during the period of the agreement." 10 U.S.C. Sec. 680 (1982). On October 17, 1978 the Marines offered Cinciarelli a SWAG providing for five years of active duty service commencing on June 21, 1979. Cinciarelli formally accepted the offer on November 20, 1978.

Early in 1979 Cinciarelli was promoted to brigadier general. Brigadier general is a "general officer" position in the Marine Corps hierarchy. At that time the Marine Corps had congressionally authorized billets for 66 active duty general officers. See 10 U.S.C. Sec. 5443 (1976). Cinciarelli's promotion caused unforeseen problems for the Marine Corps brass. Since he was to be on active duty he would have to fill one of the 66 general officer slots. No slot was available to give him, however. Also, under established Marine Corps policy general officer slots went to career rather than to reserve officers. To resolve this problem the Marines withdrew Cinciarelli's SWAG on June 11, 1979, ten days before Cinciarelli was to commence active duty under it.

Cinciarelli then sued in District Court for an injunction ordering his reinstatement on active duty as a brigadier general. He argued that 10 U.S.C. Secs. 679, 680 prohibited the Marines from terminating his SWAG without a full hearing. In defense the Marines made two arguments. First, the statutory protections were not yet in effect; according to this argument the "period of agreement" in which protection accrued began on the first day of service under the SWAG. Second, the SWAG was properly terminated because it was void ab initio; Marine Corps Regulation 1001.52 which governs SWAG's, expressly prohibits the grant of a SWAG to a colonel. ¹ The District Court accepted the first argument and did not reach the second. The court held that under the statute the "period of agreement" for purposes of statutory protection commenced on the first day of service under the SWAG. On appeal this court reversed on the ground that effectuation of legislative intent behind Sections 679 and 680 required that the "period of agreement" commence when the agreement is signed, not when service begins. The court remanded for evaluation of the Marine Corps' second defense on August 21, 1981. See Cinciarelli v. Carter, supra, 662 F.2d 73.

Following a status conference on October 2, 1981 the District Court established a trial schedule by order on October 27, 1981, with trial set for February 16, 1982. Settlement negotiations began in earnest some time late in 1981 or early in 1982. The trial was postponed. On February 22, 1982 Cinciarelli filed an amended complaint alleging a constitutional tort for monetary damages and adding two Marine Commandants as personal defendants. On February 25th the parties settled and the District Court approved the settlement by signing a Stipulation of Dismissal, Joint Appendix (JA) 273. The settlement provided that the government was to pay Cinciarelli $364,690.80 and give him all retirement credit he would have earned had he actually served under the SWAG. Shortly after settlement Cinciarelli brought this suit claiming attorney fees under EAJA. The District Court rejected the claim, and Cinciarelli appealed to this court.

II. ANALYSIS

Section 2412(d)(1)(A) of EAJA provides in relevant part:

[A] court shall award to a prevailing party other than the United States fees and other expenses * * * incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, 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) (Supp. V 1981). The government does not dispute that General Cinciarelli was a "prevailing party" within the meaning of the statute. Cinciarelli is therefore entitled to reasonable fees unless the government can persuade us that its position in this case was "substantially justified." See Spencer v. NLRB, 712 F.2d 539, 557 (D.C.Cir.1983) ("government bears the burden of demonstrating that its position was 'substantially justified' "); H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10-11, (1980). ² The legislative history makes clear that this justificatory burden requires the government to meet a test slightly more stringent than one of reasonableness. Spencer, supra, 712 F.2d at 558 (discussing S.Rep. No. 253, 96th Cong., 1st Sess. 8 (1979)). In this circuit the "position" that the government must show was substantially justified is its litigation position, not the prelitigation conduct giving rise to the lawsuit. Id. at 557; Del Manufacturing Co. v. United States, 723 F.2d 980, 983 (D.C.Cir.1983). Partial awards are contemplated within EAJA's statutory scheme; if some but not all of the government's defenses are substantially justified the prevailing party should be compensated for combatting those that are not. See Spencer, supra, 712 F.2d at 557 (partial awards will "induce government counsel to evaluate carefully each of the various claims they might make in a particular controversy, and to assert only those that are substantially justified"); Goldhaber v. Foley, 698 F.2d 193, 197 (3d Cir.1983).

The government's litigation position in the present controversy was made up of the twin defenses described in Part I supra. In deciding whether this litigation position was "substantially justified" our focus is primarily on the legal merits of the government's arguments. Congress has instructed us that "[w]here the Government can show that its case had a reasonable basis in both law and fact, no award will be made." H.R.Rep. No. 1418, supra, at 10 (emphasis added). See Del Manufacturing Co., supra, 723 F.2d at 988 (Wald, J., dissenting). ³ In this case the government's defenses stand on a different footing, and we will analyze each separately.

The interpretation of 10 U.S.C. Secs. 679, 680. We first evaluate the government's argument that Sections 679 and 680 did not prohibit the Marine Corps' decision to terminate Cinciarelli's SWAG. Though the statute prohibits termination of a SWAG unless the termination is conducted pursuant to formal procedures including a hearing, the government argues that the Marines could properly terminate Cinciarelli's SWAG without following such procedures. According to the government's argument, the statutory term "period of agreement," during which the statutory protection applied, began on the first day of service under the SWAG, not on the day the SWAG was signed. Since the Marine Corps terminated Cinciarelli's SWAG on June 11th and the period of service was to begin on June...