Covington v. Department of Health and Human Services
| Decision Date | 17 April 1987 |
| Docket Number | No. 84-976,84-976 |
| Citation | 818 F.2d 838 |
| Parties | Elias W. COVINGTON, Petitioner, v. DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
Phillip R. Kete, Takoma Park, Maryland, for petitioner.
Lynn J. Bush, Commercial Litigation Branch, Civ. Div., Dept. of Justice, Washington, D.C., for respondent; M. Susan Burnett, of counsel.
Before MILLER * and SKELTON, Senior Circuit Judges, and NEWMAN, Circuit Judge.
On Petition for Attorney Fees
Elias W. Covington requests attorney fees and expenses incurred in his appeal from the Merit Systems Protection Board (Board) to this court, Covington v. Department of Health & Human Services, 750 F.2d 937 (Fed.Cir.1984), and those incurred in submitting this fee application. The award is sought pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412. The Department of Health and Human Services (HHS) opposes the application on the bases that it was not timely filed and that Mr. Covington was not a prevailing party before this court. Alternatively, HHS argues that if Mr. Covington is entitled to an award the amount sought is unreasonable and unsubstantiated.
Following this court's decision that reversed the Board's dismissal of Mr. Covington's appeal and remanded to enable him to establish his entitlements in accordance with law, the Board granted Mr. Covington certain reinstatement rights, including back pay. Covington v. Department of Health & Human Services, 31 M.S.P.R. 351 (1986).
On August 20, 1986 Mr. Covington through attorney Phillip Kete, who represented Mr. Covington before the Board, filed a petition with the Board for attorney fees incurred in the administrative proceedings and in the appeal to this court. On October 7, 1986 the Board held that an attorney fee award for the administrative proceedings was in the interest of justice, applying the Back Pay Act, and awarded attorney fees for Mr. Kete's representation of Mr. Covington therein. The Board also held that it was "inappropriate" for it to rule on the request for fees for the judicial appeal, because the request was not filed by the attorney who handled the appeal and no one from that law firm, Heise Jorgensen & Stefanelli, had moved for fees. Covington v. Department of Health & Human Services, No. DC03518210591, slip. op. at 2 (MSPB Oct. 7, 1986).
On October 10, 1986 Mr. Covington, through Mr. Kete, filed the petition now before us, requesting attorney fees and expenses for the judicial appeal.
The Equal Access to Justice Act (EAJA) may be invoked as a basis for the award of attorney fees for appeals to this court from decisions of the Merit Systems Protection Board. As discussed in Brewer v. American Battle Monuments Comm'n, 814 F.2d 1564, 1566 (Fed.Cir.1987), the EAJA requires that fees be awarded unless the government can show that its action was substantially justified or that circumstances make the fee award unjust; the burden of proof with respect to these exceptions rests with the government. H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.Code Cong. & Admin.News 4953, 4984, 4989. The agency does not present such defense.
The agency argues that Mr. Covington was not the prevailing party on the appeal to this court, that he did not prevail until after the Board's decision on remand, and therefore that he has no entitlement to attorney fees for the interim judicial appeal. This argument was treated in Brewer, at 1566-1569, and for the reasons there discussed and the authorities there cited, can not stand.
The government also argues that this fee application was not timely filed. The fee application was submitted within thirty days after expiration of the time for appeal of the final decision of the Board after remand; this is in accordance with 28 U.S.C. Sec. 2412(d)(1)(B), which provides that the fee application shall be filed "within thirty days of final judgment in the action", i.e., the action in which the applicant became a prevailing party. See Brewer, at 1569-1570. See also H.R.Rep. No. 120, 99th Cong., 1st Sess. 18 n. 26, reprinted in 1985 U.S.Code Cong. & Admin.News 132, 146 n. 26.
The agency alternatively argues that it is required by the rules of the Federal Circuit that the petition be filed within ten days after issuance of the mandate in the appeal:
Applications [for attorney fees] must be filed not later than 10 days after the mandate has issued, unless a different time is provided by statute.
Fed.Cir.R. 20(a)(1) (as amended November 17, 1986). Because the EAJA provides a "different time" for...
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Erickson v. U.S. Postal Serv., s. 2008–3216
...before the court of appeals); Phillips v. Gen. Servs. Admin., 924 F.2d 1577, 1581 (Fed.Cir.1991) (same); Covington v. Dep't of Health and Human Servs., 818 F.2d 838, 840 (Fed.Cir.1987) (the Board lacks authority to award attorney fees for services rendered in connection with judicial review......
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... ... Litigation Branch, Civil Division, United States Department of Justice (Stefan Shaibani and David S. Silverbrand); Beth ... the fees and other expenses for the specific legal services rendered in litigating before the Court of Appeals the ... Covington v. Dep't of Health & Human Sen., 818 F.2d 838, 839 ... ...
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Erickson v. U.S. Postal Serv.
...the court of appeals); Phillips v. Gen. Servs. Admin., 924 F.2d 1577, 1581 (Fed. Cir. 1991) (same); Covington v. Dep't of Health and Human Servs., 818 F.2d 838, 840 (Fed. Cir. 1987) (the Board lacks authority to award attorney fees for services rendered in connection with judicial review); ......
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SIGMA, UV INTERN. v. US
...EAJA." Traveler Trading Co. v. United States, 13 CIT 380, 381, 713 F.Supp. 409, 411 (1989). See also Covington v. Department of Health & Human Services, 818 F.2d 838, 839 (Fed. Cir.1987). If the Government is unable to carry its burden, the court must award the requested fees and expenses. ......