Citizens Bank, Valley Head, Ala. v. United States

• Decision Date: 15 March 1983
• Docket Number: Civ. A. No. 82-AR-0431-M.
• Parties: The CITIZENS BANK, VALLEY HEAD, ALABAMA, an Alabama corporation, Plaintiff, v. UNITED STATES of America, Defendant.
• Court: U.S. District Court — Northern District of Alabama

558 F. Supp. 1301

The CITIZENS BANK, VALLEY HEAD, ALABAMA, an Alabama corporation, Plaintiff, v. UNITED STATES of America, Defendant.

Civ. A. No. 82-AR-0431-M.

United States District Court, N.D. Alabama, M.D.

March 15, 1983.

Frank W. Donaldson, Caryl P. Privett, Birmingham, Ala., Karl L. Kellar, Trial Atty., Tax Div., Dept. of Justice, Washington, D.C., for defendant.

Lee H. Zell, Marvin Campbell, Berkowitz, Lefkovits & Patrick, Birmingham, Ala., for plaintiff.

MEMORANDUM OPINION

ACKER, District Judge.

This cause is before the Court upon plaintiff's application for attorneys' fees and expenses pursuant to the Equal Access to Justice Act (EAJA), enacted as Title II (§§ 201-208) of the Small Business Export Expansion Act of 1980, Pub.L. 96-481, 94 Stat. 2325, codified as 28 U.S.C. § 2412.

The basic purpose of the EAJA, as its name implies, is to equalize private litigants with Uncle Sam so that Uncle Sam's logistical capability cannot be used to oppress or to hassle his opponents in court without risk to the budget of the particular department or federal agency involved. One of the fathers of this new public policy was Senator James B. Allen, who believed in fair play and believed that the EAJA concept would be a way of accomplishing it when the federal government is a litigant. Senator Howell Heflin, and others, picked up on the idea after Senator Allen's death, and obtained the enactment of the EAJA in 1980. Alabama, with two of its senators playing a role in its enactment, has a peculiar stake in the success of this legislation. Will it achieve its avowed purpose, or is it to simply be a temporary gnat, bothersome for a moment to the government, but to be judicially emasculated and swatted into oblivion? The EAJA is so new on the books that there is, as yet, no real judicial expression on its meaning and application. It can have real effect or not, depending on what the federal courts do with it or to it.

This cause is one in which Citizens Bank sought recovery of an Internal Revenue Service deficiency assessment paid with respect to calendar years 1977 and 1978. On September 28, 1982, this Court entered summary judgment in the amount of $31,542.45, plus interest, in favor of plaintiff, and simultaneously denied the United States' cross-motion for summary judgment. The IRS gave notice of appeal to the Eleventh Circuit, but then voluntarily dismissed its appeal. As the prevailing party, Citizens Bank timely moved for an award of attorneys' fees and expenses. The United States opposes the motion. Specifically, Citizens Bank seeks $5,295.00, representing 70.6 hours expended by its attorneys in the case, including the 1.5 hours spent at the evidentiary hearing held on February 10, 1983, on this post-trial issue, all at $75.00 per lawyer-hour. Plaintiff also requests $188.31 reimbursement for other expenses, such as long distance telephone charges, xerox and post-age.

The EAJA authorizes the awarding of attorney fees to the prevailing party against the United States, or an agency thereof, under those circumstances spelled out therein. First, a court may assess reasonable fees and expenses of attorneys against the government to the same extent that a private party would be liable under the common law or pursuant to the terms of any statute. 28 U.S.C. § 2412(b). Second, the nondiscretionary section of the EAJA, 28 U.S.C. § 2412(d)(1)(A), provides in pertinent 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. (emphasis supplied).

Because the Court is unaware of any common law or statutory exception to the rule that prevailing litigants are not ordinarily entitled to collect attorneys' fees from the loser, i.e., the "American Rule", Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), plaintiff is entitled to attorneys' fees only if it satisfies the second criterion, namely, the requirements set forth in subsection (d)(1)(A).

To be eligible for the mandatory fee award, plaintiff must qualify as a small business under the EAJA by meeting the financial standards set forth in 28 U.S.C. § 2412(d)(2)(B), which limit such recovery to organizations whose net worth does not "exceed $5,000,000 at the time the civil action was filed ... or that the organization had not more than 500 employees at the time the civil action was filed". Although meeting either of these requirements is sufficient under the terms of the statute, plaintiff here has met both, as shown in the uncontroverted affidavits of E.N. Jones, III, vice-president and cashier of Citizens Bank.

Having determined that the prevailing party here meets the financial eligibility requirements, the Court next must examine whether or not the position of the IRS here was "substantially justified", and whether or not here "special circumstances make an award unjust".

The words "substantially justified" might cause difficulty for Christian theologians, who would say that a person either is "justified" or is "not justified". Martin Luther would have had a hard time comprehending "substantial justification". Here, however, the Court is not dealing with theological terminology but with legislative terminology which can be comprehended. Although the EAJA does not define the words "substantially justified", the legislative history does provide guidance. The standard is explained as follows:

The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and fact, no award will be made.

H.R.Rep. No. 96-1418, 96th Cong., 2nd Sess. 10-11, reprinted in 1980 U.S.Code Cong. and Ad.News 4953, 4989. The fact that the "substantially justified" standard was based on Rule 37 of the Federal Rules of Civil Procedure, which provides that a party prevailing on a motion for sanctions for failure to comply with discovery requests may obtain attorneys' fees unless the court finds that the position of the losing party was "substantially justified", further indicates that the standard is essentially one of reasonableness. Id. at 18, 1980 U.S.Code Cong. and Ad.News at 4997.

The legislative history also makes it clear that the burden of demonstrating substantial justification rests with the government. Id. at 10, 1980 U.S.Code Cong. and Ad.News at 4989. The standard and nature of the burden are described in the following terms:

Certain types of case dispositions may indicate that the Government action was not substantially justified. A court should look closely at cases, for example, where there has been a judgment on the pleadings or where there is a directed verdict or where a prior suit on the same claim has been dismissed. Such cases clearly raise the possibility that the Government was unreasonable in pursuing the litigation.

The standard, however, should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was

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